The Digest of Justinian

Ahh eh al oo Cnt Or

ws ‘ FeV VOOR dtay. cra he ‘ Wel Ree VE Ee Ma bog 4 + Y 4 BAN anda udgen Read ’ kc mer WOVE ATW atin tras ( \ ¥ ‘ ‘ beige Ub Ot, ed Spee Pay wee Vy wears Sh ee ad tao ae PMA READ LRT are Re Pre er 2 Rome bb CA Wintiek sy Purks be Reoths ba: ; ; va hay ICES ASHIN Alyy Acad Er Llarary re SMR Ona ntay tte, +4 vive . ‘ ALAS! JN ter ds eT & ee Sear ety ah SoBe wr de RE ce RE Temwne DY | vs Fe BNA Geer anc nn, Alpe Wr Mariette hitin beak ‘ 4 * , LAC Ue RPGS WR! as eect VR ae ea, ‘ i ye ‘ ‘ & vars HA eeace we meyY My soy ay bare byrtiy : SUN Beit bits ws oaralge deaths ata vas \ SUES NW TGR aeth Jia ale Mei ob “4 4 “i VO aR ay 1 TSWV IW ered ire brea bebe babe ‘ MH y hia, Vw GT bs tay LON ; wyraaytane Wet t e aeNe UTA TELA} Veoh Wa as sie ' Oh EMO Ve airg Weg ; . way - A ee Wey meee Nyterer eter nary tyeas SUT ORY ora ty ' ; p—— — ~ — } anys Par biotch sake ties a Eee hs tee WAT ae, F-— = 3 a Yee Le VER Wa Sora cy MONS UDetiyiy Withee Ne OR air cide MeO Ee, a TOE GU VASES Marae Matton tions == —49 Ps ite ‘ ater mC SL WNE Diary eats ———— iy to die behold a mest (0) , Vet sw acted §. he ’ WELW KEY i <a ee PSNR SA. é (©) fetetesaia asresionre: tr ——— i unt s NWA TASA Ce RURAL Hare Cc © } = HRA Che & Oe MEI AY) o vray Tier » BALBOA Aa Cece bards datas ——c> Vy Nahe AE EAR Sae a HAGA ACEO Iter ugy tere ha FON vine Yt ames hous ere —=———— She ya gsi Sr ever e ane ——_—= i Vevey wh ° = ‘ F AGU NN baa wa -----—_ et Ulehcne ahi He Sue List bane bal wR a SoepAncty == ra ‘ wy \ w ¢ —so va A : oa == ren 2=—==«O haath => — z ; (Bee . raat seremsacres Rit wicke wets ity beue cere ky ay daniees dae ‘ ‘ . ‘ ‘ % aureat pet teen) 44 Gitet da 4 a Pat , di erie re eye " OLCLRST Eee DOP PR DT Hid retias v4 Nhe Sy i PAVING cert ’ . bees é dite ee 4 h , ; } } 3 rp aes tau esy i ri , FS PRre ye Line eRe ve} $e , , J evi llas OTLEF Heh COR dyes ue pa of jtnidy an : rary ¢ wh eS bedeting ddynen nese ee § pretee ; Ieee U Pest j Pee rdAd UB dtek aglenes tel ehayres , syd ‘ us RY wish oh heer od ehiee? be, } ; : , Ae cine Spare 4 : r Pair ohare ark inde . : Pry) EME ATAL 73 ARieATER Ne RAE tor bodes nos ; Patterns #244 CAC nese be Heat basmati H ¢ AsO bA Gionte ad C44 Sere cance age Bara! ot aon deisel een hitiechyed © (rit eaweeay roe *eqd ee tees die , Wipes arigelre j } ' RDS Betseregiet vhtec wa imcated ooae eee } thaatiagcpuente td suign 4 | ; AM dt geae Vals beparvlevteaage aspen. } ; eat ety ; CURT aedsyotteuier da 4e a ave fyeltie ; : Fysearehe ends ay names 4 J ie tht Tbs aq tran aes ) i ; lew eeh tie qecey PUT est et ew i \ , j hE 4 Mea Chy sensi dane gig sere kiigisa : Hh } Head ; PACH Td ac ae getedey sy, eth eed r PONE eda Coe Ge bees teas dca a ! ‘ ‘ ‘ 1 tae Plage ; A if 1 Milena . Hhey? 7 ‘ 2 BUC Tose fey aneg vt : THEA dt pea dey ; ' sineneyt , ‘ 4 ‘? PON SAd te We segs i ‘ i ; ; tsi nade Sein ys f3 ier] < . Fae degty Le ad SAS 08 Bre lng | wer ‘ 140s dseage fae \s ait ts ’ ea birth ppegaie i A Ch RTT wie de | F i j fbi are lea eet a Lat etasawes } ‘ ' Peder inet Opie Aen) H H WP jane tayy deweie | : : ewibapeaeda fe ed | ‘ hi Pen euis sadadk eine thera sagys ‘ ' . “y WAAL a ALE ed ote ae praia } : Rbedd ree ANY REET HObEh be my Pe ates ge mabailahng ide } : i ' PAVE Pe taadey ar eae. Hed Vi waternn pad ¢ ‘ re yg AoW or ds Fabia Jagy t j A de COCR EL OL U Teen et ee} : ACID bg ey PLAS Wolsey i t ‘ WEE LU ae oe S104 8) By F F Meas, Sarda dese heesy ; ‘ ; 7 ASRS Mace Dung Betyg { bay bigs . Sst Peed GS lgan ‘ j i Witch site dee a4 t Lids ,/ ‘¢ ’ Wetedrciaok t: U t t ‘ ' ‘ , } i ; ; i

Digitized by the Internet Archive in 2008 with funding from Microsoft Corporation

http://www.archive.org/details/digestofjustiniaO1 monruoft

ay ey

By em al ea fo, - eae, be a es es

a i nS ta a | ne Dd

saute 4 Als 7

ce Y ier tis

a a a ; 7

y 7 | erat Pou x iy a f (tke ea er i Oy , ava test! ae We

cA " :

THE DIGEST OF JUSTINIAN

Hondon: C. J. CLAY anv SONS, CAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AVE MARIA LANE,

AND

STEVENS AND SONS, LIMITED, 11% anp 120, CHANCERY LANE.

Glasgow: 50, WELLINGTON STREET. Leipsig: F. A. BROCKHAUS. few Bork: THE MACMILLAN COMPANY, Bombay and Calcutta: MACMILLAN AND Co., Lrp.

[All rights reserved. |

THE DIGEST OF JUSTINIAN

TRANSLATED

BY

CHARLES HENRY MONRO, M.A.

FELLOW OF GONVILLE AND CAIUS COLLEGE CAMBRIDGE BARRISTER AT LAW

VOLUME I At ©? 1?

At the University Press

Cambridge

1904.

Cambridge:

PRINTED BY J. AND OC. F. CLAY, AT THE UNIVERSITY PRESS.

PREFACE.

HIS Volume is an instalment of a Translation of the Digest of Justinian, and, if circumstances are favourable, I hope it may be finished in the course of a few years, either by the present writer or by another. A few words have to be said as to the general design and method of the work. Something is always gained and something lost by the use of a translation. The gain is the obvious saving of time and trouble for those whose knowledge of the original language is imperfect, indeed even for others; the loss is that of the tone and spirit of the original. This at least and at the best; but there is also the possibility of the translation being incorrect, while all clue to the true meaning is effaced. A translator must hope to obviate these dangers as best he may by taking care ; but there is one source of embarrassment which requires to be treated with special tact and judgment, I mean the occurrence of technical expressions. How are these to be rendered? There are several ways of dealing with them.

First, they can be left untranslated and simply given in the original ; and, if one universal method is to be followed through- out, I believe this to be the best. Secondly, the Latin expression can be translated by the name of the nearest corresponding institution in English law, and this plan, on the same supposition, I believe to be the worst. Thirdly, the Latin term may be

vi Preface

interpreted, i.e. rendered by a kind of explanatory substitute. This is very common in the German translation edited by Otto, Schilling and Sintenis, far the best, I believe, existing ; in which, however, to give one example, the Latin word adoptare is constantly rendered ‘an kindes statt annehmen,’ to take on the footing of a child; a kind of version which leaves the reader with a peculiar sense of unsatisfied want. There is yet another method ; an English expression may be used, but it is felt at the same time that it is not to be taken as a translation at all, strictly speaking; it is meant to represent the Latin word in a more convenient form, not to interpret it. One very simple example of this occurs where the original is somewhat lengthened or shortened or otherwise modified, in a way which often gives rise to a recognised English word, though not always; take the terms inofficious, agnate, compensation. The last is no doubt an English word, but it does not translate the Latin word from which it is derived. This procedure is a fertile source of inaccuracy and misunderstanding, but we cannot afford to discard it; we must, of course, bear in mind, to take an example, that, where the English word ‘heir’ stands for heres, it is not used in its ordinary sense. No rule, I should say, ought to be followed exclusively ; on the whole, however, the plan which I have preferred is to go chiefly by the first, so far as to give the Latin expression, though to a considerable extent following the third also ; but it will be desirable to add a Glossary of the Latin technical terms used at the end of the present work.

As hinted, a certain freedom should always be maintained ; even the second of the above methods need not be absolutely excluded ; as, for instance, where the institution named is one whose precise nature is immaterial to the main subject under discussion, or the correspondence is really exact.

It need perhaps hardly be said that anyone who wishes thoroughly, or as far as he can, to understand the Digest requires a great deal more information than can be supplied by the best

Preface vil

possible translation. Many passages are difficult to comprehend, or indeed are incomprehensible, because the reasoning is involved and abstruse, or the text is corrupt, or there is an interpolation made by an incompetent or ill-advised person. With these matters the translator as such has very little concern. If the reasoning is complicated or hopelessly obscure, his aim should be to make the English version present precisely the same obscurity and to pre- serve as well as he can such means of removing it as the passage itself in his judgment presents. Where the text is corrupt, he should call attention to the fact, unless the corruption is too insignificant and the sense is plain; and it will often be advis- able to offer some more or less conjectural reading by way of emendation. The best Editor of the text, I mean Mommsen, has suggested many such readings, most of which are adopted, i.e. mentioned, in the following pages. It should perhaps be here noted that although emendation proposed by a competent person is commonly of value as an expression of opinion as to the meaning of the true text, which it purports to supply, still an emendation which introduces, say, half-a-dozen words arrived at by conjecture, however worthy of attention, is in many cases, perhaps in most, very unlikely to be the true reading. The subject of interpolations has been treated with ability and to good effect by recent writers, Gradenwitz and others, and is of considerable interest ; but an interpolated passage is still an integral part of the Digest, and has to be translated accordingly.

This leads to the question what is the text here translated ; to which I have merely to say that it is, as may be supposed, taken from Mommsen, and almost entirely from his later single column edition, with, at the foot of the page, the greater number of the corrections or emendations suggested by him. These are marked in a note with the letter M, where the Editor expresses no doubt, the expression “Cf. M.” signifying that he shows some hesitation. I have ventured occasionally to suggest my own emendation, with- out adding any explanatory mark.

Vili Preface

I have translated what may be called Justinian’s prefaces, three in number, which describe the scheme and occasion of the Digest and other works, as well as the Emperor’s plan of education for legal students ; they consist of three ‘Constitutiones’ or enact- ments, commonly distinguished by their respective initial Latin words. The third of them, the Constitutio Tanta, appears to be a free version of a Greek text, which itself is also preserved. This last I have not thought it necessary to translate ; a modern Latin version is given in Mommsen’s stereotype or double column edition.

I have to thank Mr Buckland of Caius College for a number of useful hints vouchsafed during the course of the work.

I cannot close this preface without expressing my sense of the immense debt owed by all those who concern themselves with the things of Ancient Rome to the illustrious scholar, legist and historian who has lately been taken from us, Theodor Mommsen.

C. H. MONRO.

CAMBRIDGE. April, 1904.

XVI.

XVII.

XVIII.

XIX.

CONTENTS.

The formation of the Digest. Constitutio “ Deo auctore” . Constitutio “ Omnem ”

The confirmation of the Digest. Constitutio “Tanta”

IE

On justice and law. (De justitia et jure.) ‘

On the origin of law and of the different magistracies, as ell as the succession of those learned in the law. (De origine juris et omnium magistratuum et successione prudentium.)

On statutes, decrees of the Senate and long usage. (De legibus Senaiusque consultis et longa consuetudine.)

On Imperial enactments. (De constitutionibus principum.)

On status. (De statu hominum.) ; F : ‘ i

On persons sui juris and alieni juris. (De his qui sui vel alient juris sunt.)

Concerning adoptions and peeeecaioue fee one cea he which potestas is dissolved. (De adoptionibus et emanci- pationibus et aliis modis quibus potestas solvitur.)

On the division of things and their respective natures. (De divisione rerum et qualitate.)

Concerning Senators. (De Senatoribus.) .

On the office of Consul. (De officio Consulis.)

On the office of Przefectus Przetorio. (De officio Pane fos Pretorio.) . y A ; i

On the office of Preeeeetis Urbi. ‘(De officio Prefecti Urbi.)

On the office of Questor. (De officio Questoris.)

On the office of the Przetors. (De officio Pretorum.)

On the office of Przefectus Vigilum. (De officio Pres felt

Vigilum.) q ‘ 3 :

On the office of ieaannel ad eerie (De officio Proconsulis et Legati.) : ; : : :

On the office of Pitefectua Ae iataliet (De officio Prefecti Augustalis.) : é ’ d t ;

On the office of Preeses. (De officio Penesiiay , :

On the office of Imperial Procurator or Rationalis. (De officio procuratoris Cesaris vel Rationalis.) .

a5

VI.

VIET.

WL.

XIII.

IY.

III.

Contents

On the office of Juridicus. (De officio Juridici.) F :

On the office of one to whom jurisdiction is delegated. (De officio ejus cut mandata est Jurisdictio.)

On the office of assessors. (De officio Assessorum.)

Il.

On Jurisdictio. (De Jurisdictione.)

A man to be dealt with after the like rule to that sie ie maintained against another. (Quod quisque juris in alterum statuerit ut ipse eodem jure utatur.)

Where a man refuses obedience to the magistrate exercising jurisdiction. (Si quis jus dicenti non se eH hake

On citation. (De in jus vocando.)

Where one who is cited fails to appear ; also alone a man ores one whom, according to the Edict, he has no right to cite. (St quis in jus vocatus non terit, sive quis eum vocaverit quem ex Edicto non debuerit.) ‘

Persons cited bound to appear or else give a patentee! or an undertaking. (Jn jus vocati ut eant aut satis vel cautum dent.) : } :

No one to release by fares a man eae is eibed: s\Ne quis eum qui in jus vocabitur vt eximat.) :

What persons respectively are compelled to sive a euninntes or promise on oath or are remitted to a simple promise. (Quiz satisdare cogantur vel jurato econ vel sue promis- siont commuttantur.) ,

Nature of the undertaking given in the case ef a noha Rei (St ex noxali causa agatur quemadmodum caveatur.)

On one who contrives that a defendant shall not appear. (De eo per quem factum erit quominus quis in judicio sistat.)

Where a man fails to observe an undertaking to appear to an action. (Si quis cautionibus in ai. sistendt causa Sactis non obtemperabit.) d : ‘

On feast-days, adjournments and pifeecne: seasons. (De feriis et dilationibus et diversis temporibus.) :

On statement of particulars and discovery of aceilinbite ete. (De edendo.) .

On pacts. (De pactis.) : : : t :

On compromising and Cannouniing (De transactionibus.)

II.

On motions. (De postulando.) : : : 5 :

On those marked with infamia. (De his qui notantur infamia.)

On “procurators” and “defensors.” (De procuratoribus et defensoribus. )

PAGE 63

63 65

66

a9

80

82

88

90

92 98 101

108 130

139 144

153

WILEY,

III.

Contents

On proceedings taken on behalf of any corporation or against the same. (Quod cujuscumque universitatis nomine vel contra eam agatur.) : ; ; : ; :

On negotia gesta (voluntary agency). (De negotiis gestis.)

On vexatious actions. (De calumniatoribus.)

iVe

On restitutions in integrum. (De in integrum restitutionibus.)

Acts done through fear. (Quod metus causa gestum erit.)

On dolus malus. (De dolo malo.)

On persons under twenty-five. (De minoribus eae Gueniae annis.) .

On capitis minutio. (De ee ee ve

Grounds on which restitution in tntegrum is allowed a persons over twenty-five years of age. (Hw quibus causis majores viginti quingue annis in integrum restituuntur.)

On transfers made for the purpose of varying the conditions of a a trial. (De alienatione judicii mutandi causa facta.)

On matters referred; on persons who undertake arbitrations with a view to pronouncing an award. (De receptis ; sh arbitrium receperint ut sententiam dicant.) :

Seamen, innkeepers, stablekeepers to restore what they receive. (Nautce caupones stabularii ut recepta restituant.) .

v.

On trials at law; as to where a man ought to take proceedings or be sued. (De judictis, ubi quisque agere vel conventri debeat.) .

On inofficious “eset (De aya EU Ha

On the action for recovery of an inheritance. (De honedititee petitione.) 4 L ‘ : ;

On suits for parts of an ‘nihapveeniben (St pars hereditatis petatur.) 4 3 : : - ;

On the possessory ea porate (De possessoria heredi- tatis petitione.) : : ; ;

On the fidei-commissary peane her. Odataee (De fidei-com- missaria hereditatis petitione.) .

VE

On specific vindications. (De rei vindicatione.)

On the Publician action in rem. (De Publiciana in rem oe )

On actions to recover vectigalian—that is emphyteutic—land. (St ager vectigalis, id est emphyteuticarius, petatur.)

256

270

274

294

300 320

3395 365 370 370 371 393

399

ERRATA.

. 13, 1. 17 from bottom of page, for entitled read intitled. . 26, ll. 3, 5, for seven months read in the seventh month.

. 45, 1. 4, for [ ] read ().

MO eallOirone do.

76, 1. 6, do.

VSo le ee 10) do.

112, 1. 17 from bottom of page, for Mavius read Mevius. 161, 1. 10 from bottom of page, for 6 read b.

. 175, 1. 14, for [ ] read ().

. 195, 1. 13, for Javolemus read Javolenus.

. 219, ll. 6, 7, for and so my case is read so as to have the application. . 219, 1. 11, after collusion insert (si colluswm est).

. 220, 1. 8, for prescriptis read prescriptis.

. 222, 1. 19, del. that.

. 229, 1. 11 from bottom of page, insert comma at end of line. 255, s. 8, del. the first two commas.

. 276, 1. 14, for both sides read each side.

330, ll. 6, 7 from bottom of page, del. commas.

. 331, 1. 15, del. mark of interrogation.

354, 1. 7, after vendor insert mark of interrogation.

. 383, ]. 6, after bequeathe, for the read a.

xiii

ON THE PLAN OF THE DIGEST.

CONSTITUTIO DEO AUCTORE.

The Emperor Cesar Flavius Justinianus pious happy renowned conqueror and triumpher ever Augustus greets Tribonianus his questor.

GOVERNING under the authority of God our empire, which was delivered to us by His Heavenly Majesty, we prosecute wars with success, we adorn peace, we bear up the frame of the State, and we so lift up our minds in contemplation of the aid of the omnipotent Deity that we do not put our trust in our arms, nor in our soldiers, nor in our leaders in war, nor in our own skill, but we rest all our hopes in the providence of the Supreme Trinity alone, from whence proceeded the elements of the whole universe, and their disposition throughout the orb of the world was derived. 1. Whereas then there is in all things nothing found so worthy of respect as the authority of enacted law, which disposes well things both divine and human, and expels all iniquity, and yet we find the whole course of our statutes, such as they come down from the foundation of the city of Rome and from the days of Romulus, to be in a state of such confusion that they reach to an infinite length and surpass the bounds of all human capacity, it was therefore our first desire to make a beginning with the most sacred Emperors of old times, to amend their statutes, and to put them in a clear order, so that they might be collected together in one book, and, being divested of all superfluous repetition and most inequitable disagreement, might afford to all mankind the ready resource of their unalloyed character. 2. This work being accomplished and put together in one volume under our own brilliant name, hastening as we do to lift ourselves above scanty and somewhat unimportant matters and to arrive at the full and supreme amendment of the law, so as to amend and rearrange the entire Roman jurisprudence and to present

XIV Constitutio Deo auctore

in one volume the scattered books of a number of authors, a thing which no one ever dared to hope or to desire, the task appeared to us to be one of great difficulty, indeed to be impossible. However, we lifted our hands to Heaven, and, praying for the Eternal aid, we embraced this enterprise in our minds, trusting to God, who is able in the magnitude of His goodness to grant and complete achievements well-nigh desperate. 3. Hereupon we bethought us of the excellent service of your wholehearted character, and com- mitted to you before others this additional work, having received proofs of your ability from the composition of our Code, and we ordered you to choose as companions in your labour whomsoever you thought right out of the number of the accomplished pro- fessors as well as of the most eloquent of the robed men of the forum, men of the most honourable position. The above persons being accordingly got together and having been introduced into our palace and accepted favourably by us on the strength of your testimony, we have entrusted to them the execution of the entire plan, it being however understood that the whole should be carried out under the management of your most watchful mind. 4. You all therefore have our order to read and to work up the books dealing with Roman law left by the learned of old time to whom the most sacred Emperor allowed the privilege of writing and interpreting rules of law, so that the whole substance might be taken from them, all repetition and all discrepancy being as far as possible got rid of, and hereupon a single and sufficient result might be pre- | sented in the place of the scattered materials which preceded. Whereas, on the other hand, other authors have written books dealing with law, but their writings have not been received or used by any later authorities, we ourselves are not concerned to let their works affect our resolution. 5. The above matter being composed under the Supreme indulgence of the Deity, it is only right to set it forth in a work of great beauty, consecrating thereby an apt and most holy temple of Justice, and to distribute the whole law into fifty books and distinct titles, in imitation of our Code of Imperial enactments and also of the Perpetual Edict, as far as this may prove in your opinion to be the more convenient course, so that there may be nothing left outside the above-men- tioned compilation, but the entire ancient law, in a state of confusion for some fourteen hundred years and now by us made clear, may be, so to speak, enclosed within a wall and have nothing left outside it ; all legal authors enjoying the same rank and no superior authority being kept for any one of them, since it cannot be said

Constitutio Deo auctore XV

that any of them are either better or worse in all respects, but only particular writers in particular respects. 6. You must however, when comparing a number of authors, not pronounce upon the work of one as better and juster, as it is possible for the opinion of one writer, and that one of inferior merit, to be preferable in some points to many and even better authors. For this reason opinions which are?! cited in the notes to Aimilius Papinianus, taken from Ulpianus and Paulus, not to speak of Marcianus, which once were allowed no weight in consequence of the honour due to the most renowned Papinianus, ought not to be at once rejected, but if you see that anything taken from them is necessary to supplement the labours of Papinianus of supreme genius or to interpret his writings, you must not hesitate to set it down as being as good as law ; so that all those most learned authors whose work is embodied in this book may have as much authority as if their lucubrations were derived from Imperial constitutions and had been uttered by our own divine mouth. We are justified in ascribing everything to ourselves, seeing that it is from us that all their authority is derived ; and one who amends anything which is done with a want of exactness deserves more credit than the original author. 7. There is another thing of which we wish you to make a special object ; if you find anything in old books which is not well placed, anything superfluous or wanting in finish, you should get rid of unnecessary prolixity, fill up what is deficient, and present the whole work in apt form and with engaging appearance. You should at the same time further observe this ; if, in the ancient statutes and enactments which old writers cited in their books, you find anything expressed incorrectly, you must rectify it and put it in proper form, so that whatever is chosen and set down by you may be deemed genuine and the best version and be treated as if originally written, and no one is to take upon him by reference to the ancient text to argue that your version is faulty. Con- sidering indeed that by an ancient enactment, the so-called Lex Regia, all legal authority and all power vested in the Roman people ‘were transferred to the Imperial Government, and we do not attribute our collective legislatorial sway to this and that source, but desire that it should be all our own, how can antiquity interfere with our legislation? In fact, we desire that all the law referred to, when once set forth, should be so fully in force, that where anything was put in one way by the old writers, but appears to

1 del. antea, M.

Xvi Constitutio Deo auctore

bear the opposite sense in our work, no fault should be found with the former, but the whole should be set down to our will and pleasure. 8. By this means, in all parts of our aforesaid Code there is to be no place allowed to any antinomy—such is the name used from old time, taken from the Greek language—but there must be full agreement, full consistency, and no one is to raise any dispute on the question. 9. Repetition too, as already said, we desire to be absent from a compilation such as this; and any provisions that have been made by the most sacred ordinances, which we have inserted in our Code, we do not allow to be again set down as parts of the old law, seeing that the fiat of Imperial enactment is quite enough to give them authority; unless indeed this should be done by way of contrast or of supplement or for more complete exactitude ; but even then it must be done very sparingly, lest, if this kind of exception is allowed, a certain amount of thorns may spring in such a meadow. 10. Again, if any rules included in the old books have by this time fallen into disuse, we by no means permit you to set them down, as we wish such rules only to be maintained as have been put in force in the most usual course of judicature, or have been approved by the long usage of this revered City, in accordance with the work of Salvius Julianus, which points out that all cities ought to follow the usage of Rome, the head of the world, and not Rome follow that of other cities. And by Rome we should understand not merely the old city, but our own royal city too, which, with the favour of God, was built with the best auguries. 11. We therefore order that everything should be governed by those two books, one that of Imperial enactments, the other that of the law consolidated and amended (jus enucleatum) and put together with a view to a book to be made ; adding any- thing else that may come to be published by us to serve the use of an educational work (institutiones), in order that the immature mind of the student, being supplied with simple principles, may be the more easily brought to the comprehension of the higher learning. 12. Our complete work, such as it will be composed by you with God’s assistance, we command shall bear the name of Digest or Pandects, and no person learned in the law shall at any time venture to add any commentary thereto and upset by his own language the concise method of the said book, as was done in old time, when, by the contradictory opinions of expositors, the whole law was little short of being thrown into confusion: let it be enough to make some few corrections of it by notes and an ingenious use of titles, avoiding the occasioning of anything to be

Constitutio Deo auctore XVil

complained of that might arise from the habit of interpreting. 13. Lest moreover the writing itself should hereafter give rise to any ambiguity, we command that the text of the book shall not be written with the use of the trickery of ciphers and compendious conundrums, such as directly and by their mischievous character have occasioned many instances of antinomy, even where what is intended to be signified is the number of the book or some similar matter; even such things we do not allow to be shown by special numerical figures, they must be set out in ordinary letters. 14. All these things your Wisdom must, with the favour of God, endeavour to accomplish, together with other most able men, and bring it to a well-conceived and most speedy close, that the com- plete book, digested into fifty heads, may be put before us in strong and eternal memory of the matter in hand, in proof of the pro- vidence of Almighty God, to the glory of our rule and of your service. Given on the eighteenth day before the Calends of January at Constantinople; in the consulship of the most honourable Lampadius and Orestes.

XVili

CONSTITUTIO OMNEM.

The Emperor Cesar Flavius Justinianus Alamannicus Gothicus Francicus Germanicus Anticus Alanicus. Vandalicus Africanus pious happy renowned con- queror and triumpher ever Augustus to Theophilus Dorotheus Theodorus Isidorus Anatolius Thaleleus and Cratinus honourable men professors and to Salaminius most eloquent man professor greeting.

THAT the whole law of our State is now reformed and arranged partly in four books of institutes or elements, partly in fifty of digests or pandects, and further in twelve of Imperial enactments— who knows better than you do? and now indeed everything which it was requisite either to order at the beginning or to pronounce upon when all was complete, with willing acknowledgment of the fact, has been fully done by our speeches made both in the Greek tongue and in that of the Romans, which speeches we wish to be eternal. Whereas however you, being appointed professors of legal knowledge, ought to be acquainted with this too, what it is that we hold necessary to be conveyed to students and at what times, to the end that they may thereby be made most worthy and most learned, we therefore opine that the present divine address ought to be directed to you especially, so that your Wisdoms, and also other professors who may choose at any future time to follow the same course, may, by observing our rules, tread the distinguished path of legal erudition. Now it is without doubt necessary that elementary works (¢nstitutiones) should in all studies claim the first place, supplying as they do the first step in every branch of knowledge in a short form. Then, of the fifty books of our Digest, we hold that six-and-thirty alone are sufficient both for you to expound and for youthful students to use for the purpose of their education. But we ought in our opinion here to set forth the order of arrangement and the method which has to be followed, and to remind you of the things which you used to deliver of old, also,

Constitutio Omnem xix

with regard to our recent compilation, to state the way of applying it and the proper times, so that nothing relating to this duty may be left unknown. 1. Some while ago, as your Wisdoms are aware, out of all the immense multitude of rules, reaching to two thousand books and three million lines, students, under instruction from their teachers, generally made use of no more than simply six books, and those ill composed and containing very little law of any importance, everything else being disused and in fact inaccessible to everybody ; these six books included the Institutes of our master Gaius and four separate books, one on the old law of dotal gifts, another on guardianships, and a third, indeed a fourtn, on testaments and legacies; and even these they did not use throughout ; there were large portions of them which they passed by as being superfluous. To students of the first year this work was not given in accordance with the order observed in the Perpetual Edict, but the subjects were arranged anyhow and all in confusion, matters practical and unpractical being mixed up, in fact the unpractical matters were allowed the larger space. In the second year the order adopted went the wrong way about, they were given the first part of the legal rules, some particular titles being left out, as it was an absurd thing after the Institutes to read anything else than what is placed first in the law and deserves to be called the first subject; but after these titles had been gone through, though even these were not read from the beginning to the end, but a selection was made, and that for the most part of unpractical pieces, there were other titles set before the students, partly from that division of the law which is called yudicza (actions at law),—these again not being taken from the beginning to the end, but only so as to afford a meagre catalogue of practical points, all the rest of the book being treated as of no consequence,—partly from that division which is called Things, consisting of seven books, in which once more a great many chapters were set on one side out of the way of the students, being regarded as unsatisfactory and not very well fitted for educational purposes. In the third year they had to take up such subjects in both works, I mean the book on Things and the book on Actions, as had not been given them in the second year, the two works being taken alternately ; this furnishing an introduction which led to the most excellent Papinianus and his Responsa, which Responsa, taken all together, extend to nineteen books; but of these they only took eight books, and not the whole contents even of these eight books; out of a great number of rules expressed in ample detail, they were confined

xx Constitutio Omnem

to a few short extracts, so that they had to close the task with their thirst unslaked. The above being all which was given them by their teachers, the students used to read the Responsa of Paulus for themselves, not taking the whole of them, but adopting a fragmentary series which a bad custom recommended. Such was, up to the fourth year, all that was done towards acquiring a knowledge of ancient law, [and if|' any one wishes to consider what were the things which they read, he will find, on reckoning them up, that in that immense multitude of legal rules there were scarcely sixty thousand lines on their subject which they read through, all the rest being left remote and unknown, and being only held worthy of attention to some very small extent when either it was required in the course of an action, or you yourselves, masters in the law, made a point of reading them, so that you might have something better to show in the way of knowledge on the part of your pupils. The above then sets forth the method of education in old days, as is fully shown by your report. 2. We however, observing this meagre provision of rules of law, and deeming it a very miserable state of things, propose to display the treasures of law to such as desire to behold them, so that, when your Wisdoms have in some wise turned them to due account, your pupils may become amply endowed legal pleaders. Accordingly in the first year they must [to begin with] take in our Institutes, derived as these are from almost the whole body of the old institutional works and conducted into one clear reservoir out of all their muddy sources by the agency of Tribonianus, that most distinguished man and magistrate, ex-queestor of our sacred palace and ex-consul, also by the agency of two of your number, Theophilus and Doro- theus, most able professors. For the rest of the year we order, in accordance with a very good principle of arrangement, that there should be given them the first portion of the law, which is called by the Greek name para, there being nothing before it, as, in fact, whatever is jirst cannot have anything else preceding it. Such, we lay down, is to be the beginning and the conclusion of the first year’s education; and we think proper that those who take it shall not be called by the silly and ridiculous name of Two- pounders (dwupondi); they are to be styled New Justinians, which appellation, so we decree, is to be used for all time to come, so that those persons who, while yet untaught, aspire to the know- ledge of law and choose to accept the enactments of the earlier year may take our name, seeing that the first book is to be given 1 Cf. M.

Constitutio Omnem xxi

to them at once, which was published by our authority. The name they used to bear was in keeping with the ancient state of con- fusion in which the law used to be, but now that it is clearly and distinctly presented, so that it can be easily conveyed to their minds, it seems requisite that they should enjoy distinction under another name. 3. In the second year, for which another name has been already given them by a decree, and one of which we approve, we ordain that they should take either the seven books on Actions or the eight on Things, according as the alternation of time allows, which alternation we wish to be maintained untouched. They must take these books, both of Actions and Things, from beginning to end, and in their proper order, none of them being omitted, as everything is invested with an elegance unknown before, and nothing unpractical or obsolete is to be found in them. To each of these books, whichever is taken, the one on Actions or the one on Things, we desire should be added for the second year’s course four works in one book each, which we have chosen out of the whole compilation of fourteen books, one being taken from the larger work in three books compiled by us on the subject of - dos, one from the two books on guardianships and curatorships, one from the work in two parts on testaments, and, from the seven books on legacies and jideicommissa (testamentary trusts) and subjects connected therewith, again one only. Thus those four books which we have put at the head of the particular compilations named above are the.only ones which we wish you to put before them; the other ten you must keep back for a convenient occasion, as it is impossible, indeed the second year is too short a time, for the study of these books to be instilled into them by a master’s instruction. 4. After this the course of the third year is to be as follows. Whether it happens to the pupils, as the turn comes, to read the book on Actions or the book on Things, there must be taken at the same time the threefold arrangement of books on law, each being on one subject; in the first place there is to be one separate work on the hypothecarian formula, which we have put in the best place for it, namely in the part where we deal with hypotheks, so that, competing as it does with actions on pledge, which come in the books on Things, it may not shun their vicinity, both of them really dealing with much the same subject. After this separate work another similar one is to be put before them, compiled by us on the Edict of the Aidiles, on the Redhibitorian action, on actions for recovery of property, and lastly on the stipu- lation for double the price, seeing that whereas legal provisions

M. J. b

Xxll Constitutio Omnem

relative to purchase and sale are conspicuous in the books about Things, but all the definitions, as we called them, were placed in the last part of the former edict, we were obliged to transfer them to the earlier position, lest they should wander further away from the neighbourhood of Sale to which they are, so to speak, ancillary. To these three books we have joined the study of that most acute lawyer, Papinianus, whose works students used to take in their third year, though they did not go through the whole series, but, here as well as before, had a few examples given them out of many, selected here and there. With you however that excellent author himself will be open for perusal, not only in respect of his Responsa, compiled in nineteen books, but also in the thirty-seven books of questions, the two books of definitions, besides the book on adultery, in fact in pretty well the whole of his dissertations throughout the entire array of our Digest in which he excels in his own special portions. Then, lest the third-year students, the Papinianists, as they are called, should seem to lose their author's name and grace of expression, he has again been introduced for the third year by a most exquisite method, as the book about hypotheks is one which we had filled throughout with passages from the same excellent Papinianus, so that the pupils may take their name from this fact and be called Papinianists, and may rejoice in memory of him, observing the festal day which they used to celebrate when they first took his rules of law, and even by this means the memory of that most sublime przefectorian may abide. for ever, and the course of study for the third year may hereupon close. 5. Next, seeing that it is usual for the students in the fourth year to go by the conventional Greek name Avtar, they can, if they like, keep this title ; but instead of the Responsa of the most learned Paulus, which at one time they used to take in barely eighteen books instead of twenty-three, reading them in the con- fused way already mentioned, let them now turn all their attention to the ten separate works which remain out of the fourteen which we have already described, by which they will acquire a store of knowledge much larger and fuller than they ever got from the Responsa of Paulus. By this means the whole compilation of separate books put together by us and divided into seventeen will be taken home in their minds, such as we have set it down in two parts of the Digest, the fifth and sixth, according to the division into seven parts; and what was said at the beginning of my address will be found to be true, the object being to make the youths perfect after studying the thirty-six books as well as equipped for

Constitutio Omnem XXill

every legal purpose and not unworthy of our days. Two other parts of our Digest, the sixth and seventh, which are arranged in fourteen books, must be laid on one side, so that they can at a later time both study them and display their knowledge of them in Court. If they studiously imbue themselves with these and take pains both to read and thoroughly to understand the Code of Imperial statutes by the end of the fifth year, in which they are called prolyte, they will want for nothing in legal knowledge, but will embrace the whole of it from the beginning to the end in their minds, and, though this is the case with no other of the branches of learning, the number of which is infinite, however worthless any may be, this study by itself will be carried forward to an admirable conclusion which it now receives at our hands. 6. Accordingly, when all these legal secrets are disclosed, nothing will be hidden from the students, and, after reading through all the works put together by us by the hands of the eminent Tribonianus and the others, they will turn out distinguished pleaders and servants of justice, and, both for contending in cases and for deciding them, they will be the ablest of men and successful in all times and_ places. 7. These three works which we have composed we desire should be put in their hands in royal cities as well as in the most fair city of Berytus, which may well be styled the nursing mother of law, as indeed previous Emperors have commanded, but in no other places which did not enjoy the same privilege in old times, as we have heard that even in the brilliant city of Alexandria, and in Ceesarea and others, there have been ignorant men who, instead of doing their duty, conveyed spurious lessons to their pupils, and such as these we desire to make desist from that attempt by laying down the above limits, so that, if they should hereafter be guilty of such conduct and carry on their duties outside the royal cities and the metropolis Berytus, they may be punished by a fine of ten pounds of gold and be expelled from the city in which instead of teaching the law they transgress the law. 8. There is another thing which we mentioned, both in the address which we delivered on first appointing commissioners for the compilation of this book and also in another ordinance issued by our Divinity after its completion, and which we may suitably issue now, namely that no one of those who compose these books is to venture to make any private ciphers in them, nor, by way of saving time, to throw difficulty in the way of the interpretation and compilation of the rules, and I wish all clerks who may at any time in future commit such an offence to know that, besides incurring the criminal fine, they will be com-

b2

XXIV Constitutio Omnem

pellable to pay twice the value of the book to its owner, if they hand it to an innocent person, seeing that the very purchaser of such a book can set no value on it, as no judge will allow anything to be quoted from it, but will order that it should be treated as non-existing. 9. Next there is a very necessary order which we make by way of very strong prohibition, that none, either in this renowned city or in the fair town of Berytus, among those who are prosecuting legal studies, shall perpetrate unworthy, indeed most offensive, or I should rather say slavish, jokes, to carry out which is an illegal act, either against the professors themselves or their companions, and still more against those who attempt the study of law when fresh to the work. How indeed can the word ‘joke’ be used of what leads to criminal acts? Such conduct we do not by any means allow; and this whole branch of the matter we put under strict rule for our own days and transmit it to all future time, as it is right that our souls should be educated first, and then our tongues. 10. All the foregoing, so far as this most prosperous city is concerned, the eminent man who is prefect of this genial city must take care both to observe and to enforce, according to what is required by the nature of the offence in the case both of students and writers ; in the city of Berytus this duty falls both on the illustrious governor of the Punic shore and the most blessed | bishop and the legal professors of that city. 11. Begin now there- fore to deliver to the students legal learning under the governance of God and to open up the way found by us, so that they may become the best ministers of justice and of the State, and that the greatest possible honour may attend you for all ages to come; the fact being that in your day there has been devised an exchange of law such as we read in Homer, that originator of all virtue, to have been mutually made by Glaucus and Diomedes when they ex- changed two unlike things,

Gold for brass, a hundred kine The worth of what was given for nine.

All this we order shall be in force for ever, to be observed by all, both professors and students of the law and clerks, by these and the judges likewise. Given on the seventeenth day before the kalends of January at Constantinople, our master Justinianus ever Augustus being consul the third time.

XXV

ON THE CONFIRMATION OF THE DIGEST. CONSTITUTIO TANTA.

In the name of our Lord God Jesus Christ.

The Emperor Cesar Flavius Justinianus Alamannicus Gothicus Francicus Germanicus Anticus Alanicus Vandalicus Africanus pious happy renowned con- queror and triumpher ever Augustus to the Senate and to all peoples.

So great in our behalf is the foresight of Divine Humanity that it ever deigns to support us with eternal acts of liberality. After the Parthian wars were hushed in eternal peace, after the nation of the Vandals was destroyed!, and Carthage, nay rather all Libya, was again taken mto the Roman Empire, then I contrived also that the ancient laws, already bowed down with age, should by my care reach new beauty and come within moderate bounds; a thing which before our command none ever expected or deemed to be at all possible for human endeavour. It was indeed a wondrous achievement when Roman jurisprudence from the time of the building of the city to that of our rule, which period well-nigh reaches to one thousand and four hundred years, had been shaken with intestine war and infected the Imperial legislation with the same mischief, to bring it nevertheless into one harmonious system, so that it should present no contradiction, no repetition and no approach to repetition, and that nowhere should two enactments appear dealing with one question. This was indeed proper for Heavenly Providence, but in no way possible to the weakness of man. We therefore have after our wont fixed our eyes on the aid of Immortality, and, calling on the Supreme Deity, we have desired that God should be made the originator and the guardian of the whole work, and we have entrusted the entire task to Tribonianus,

1 For ereptam read peremptam, M.

XXVi Constitutio Tanta

a most distinguished man, Master of the Offices, ex-quaestor of our sacred palace and ex-consul, and we have laid on him the whole service of the enterprise described, so that with other illustrious and most learned colleagues he might fulfil our desire. Besides this, our Majesty, ever investigating and scrutinizing the composition of these men, whensoever anything was found doubtful or uncertain, in reliance on the heavenly Divinity, amended it and reduced it to suitable shape. Thus all has been done by our Lord and God Jesus Christ, who vouchsafed the means of success both to us and to our servants herein. 1. Now the Imperial statutes we have already placed, arranged in twelve books, in the Code which is illuminated with our name. After this, undertaking a very great work, we allowed the same exalted man both to collect together and to submit to certain modifications the very most important works of old times, thoroughly intermixed and broken up as they may almost be called. But in the midst of our careful researches, it was intimated to us by the said. exalted person that there were nearly two thousand books written by the old lawyers, and more than three million lines were left us by them, all of which it was requisite to read and carefully consider and out of them to select whatever might be best. This, by the grace of Heaven and the favour of the Supreme Trinity, was accomplished in accordance with our instructions such as we gave at the outset to the exalted man above mentioned, so that everything of great importance was collected into fifty books, and all ambiguities were settled, without any refractory passage being left. We gave these books the name of Digest or Pandects, for the reason that they have within them all matters of question and the legal decision thereof, having taken to their bosom things collected from all sides, so that they conclude the whole task in the space of about one hundred and fifty thousand lines. We have divided the books into seven parts, not incorrectly nor without reason, but in regard of the nature and use of numbers and in order to make a division of parts in keeping therewith. 2. Accordingly, the first part of the whole frame, which part is called +péta, after the Greek word, comes by itself in four books. 3. The second link has seven books, which are called de judicis (on trials at law). 4. In the third group we have put all that comes under the title de rebus (on things), the same having eight books assigned to it. 5. The fourth place, which amounts to a sort of kernel of the whole compila- tion, takes eight books. This contains everything that relates to hypothek, so that the subject does not differ very much from the

Constitutio Tanta XXVil

actio pigneratitia (action to redeem, etc.), and another book is inserted in the same volume which has the Edict of the Edile and the Redhibitorian action and the stipulation for returning double the price received, which is matter of law in case of an evictio (recovery of property on the ground of ownership), the fact being that these matters are connected with the subject of purchase and sale, and the aforesaid actions were always closely attendant on those last topics. It is true that, in the scheme of the old Edict, they wandered off into out-of-the-way places widely apart from one another, but by our care they are put in the same group, as it is only right that discussions on almost identical subjects should be put ciose together. Then another book has been devised by us to follow the two first to deal with interest on money and with trajectitia pecunia (bottomry loans), also on documents of title, on witnesses, on proof, and therewith on presumptions, which three separate books are placed close to the portion dealing with things. After these we have assigned a place to the rules laid down any- where as to betrothals, marriages, and dowries, all which we have set forth within three volumes. On guardianship and curatorship we have composed two books. This framework, consisting of eight books, we have set down in the middle of the whole work, and it contains all the most practical and best expressed rules collected from all quarters. 6. We then come to the fifth article of our Digest, to which the reader will find consigned whatsoever was said of old time on the subject of testaments and codicils, both of ordinary persons and soldiers ; this article is called “On Testaments.” Next comes the subject of legacies and jideccommissa (testamentary trusts), in books five in number. 6a. And as there is nothing so closely bound up with anything else as an account of the lex Falcidia with legacies, or of the Senatusconsultum Trebellianwm with fidet- commissa, we appropriate two books to these respective subjects, and thus complete the whole fifth part in nine books. We have not thought proper to put anything besides the Senatusconsultum Trebellianum, because, as to the stumblingblocks and obscurities of the Senatusconsultum Pegasianum, which the very ancients themselves were disgusted with, and their nice and superfluous distinctions, we desire to be rid of them, and we have included all the law we lay down on the subject in the Trebellianum. 6b. In all this we have said nothing about caduca (escheats), lest a head of law which, in the midst of unprosperous courses and bad times for Rome, grew in importance with public distress, and drew strength from civil war, should remain in our day when our reign

XXVill Constitutio Tanta

is strengthened by Divine favour and a flourishing peace and placed above all nations in the matter of the perils of war, and thus a melancholy reminiscence should be allowed to cast a shadow on a joyful age. 7. Next we have before us the sixth part of the Digest, in which are placed all kinds of bonorum possessio, whether they relate to freeborn persons or freedmen, and herein the whole law concerned with degrees of relationship and with connexion by marriage, also statutable heritage and succession ab intestato in general and the Senatusconsultum Tertullianum or Orfitianun, which respectively regulate the succession of children to their mother, and mothers to their children. We have assigned two books to all the varieties of bonoruwm possessio and reduced the whole to a clear and compendious scheme. 7a. After this we take the things laid down by old authors as to operis novi nuntiatio (notification of novel structure), as to the damnum infectum (apprehended mischief), also for the case of the destruction of buildings or the same being threatened, also as to the keeping off of rainwater ; further we take whatever we find provided by statute relating to publicani as well as to the making of voluntary gifts both inter vivos and mortis causa, all which we have put ina single book. 7b. For manumissions and trials as to liberty, these are the subject of another book, (7c) and again on questions as to property and possession there are many discursive passages put in a single volume, (7d) while a further book is assigned to the subject of persons who have suffered judgment or have confessed in jure (in the pleadings), also of detention of goods and sales thereof (for insolvency), and as to the preventing of frauds on creditors. 7e. After this, Interdicts are dealt with in the lump, then come exceptiones (pleas), and there is again a separate book embracing the subject of lapse of time and obligations and actions; the result being that the above-mentioned sixth part of the whole volume of the Digest is kept within eight books. 8. The seventh and last division of the Digest is made up of six books, and all the law that is met with as to stipulations or verbal obligations, as to sureties and mandatores (persons who request an advance to be made to another), also novations, discharges of debt, formal receipts and preetorian stipulations is set down in two volumes, which it was impossible so much as to reckon among the number of ancient books. 8a. After this we have put two terrifying books on the subject of private and extraordinary offences and also of public crimes, in which are described the whole severe treatment and awful penal measures applied to criminals, mixed with which are

Constitutio Tanta Xxix

the provisions which have been made as to incorrigible men who endeavour to conceal themselves and who resist authority, also the matter of penalties such as are imposed on condemned persons, or remitted, and the subject of their property. 8b. Next we have devised a separate book on appeals from judgments delivered by way of deciding either civil or criminal cases, 8c. and whatever else we find devised by the ancients and strictly laid down for municipal authorities or with relation to decurions or to public _ offices or public works or nwndine (right of market), or promises or different kinds of trials or assessments or the meaning of words,— all these are taken into the fiftieth book, which closes the whole compilation. 9. The whole of the above has been completed by the agency of the eminent man and most learned magistrate Tribonianus, ex-queestor and ex-consul, a man adorned alike with the arts of eloquence and of legal science, as well as distinguished in practical life, and one who has no greater or dearer object than obedience to our commands: other brilliant and hardworking persons have co- operated, such as Constantinus, that illustrious man, Count of the Sacred Largesses and Master of the Office of Libels and Sacred inquiries, who has long deserved our esteem from his good repute and distinction ; also Theophilus, an illustrious man, a magistrate and learned in the law, who wields admirably the best sway in the law over this brilliant city ; Dorotheus, an illustrious man, of great eloquence and questorian rank, whom, when he was engaged in delivering the law to students in the most brilliant city of Berytus, we, moved by his great reputation and renown, summoned to our presence and made to share in the work in question; again, Anatolius, an illustrious person, a magistrate, who, like the last, was invited to this work when acting as an exponent of law at Berytus, a man who came of an ancient stock, as both bis father Leontius and his grandfather Eudoxius left behind them an excellent report in respect of legal learning ; also Cratinus, an illustrious person, Count of the Sacred Largesses, who was once a most efficient professor of this revered city. All these were chosen for the above- mentioned work, together with Stephanus, Mena, Prosdocius, Eutolmius, Timotheus, Leonides, Leontius, Plato, Jacobus, Con- stantinus, Johannes, most learned men, who are of counsel at the supreme seat of the Praefecture, which is at the head of the eastern pretoria, but who derive a testimony to their excellence from all quarters and were chosen by us for the completion of so great a work. Thus, all the above having met together under the guidance of the eminent Tribonianus, so as to accomplish this great work in

Xxx Constitutio Tanta

pursuance of our commission, the whole was by Divine favour com- pleted in fifty books. 10. Herein we had so much respect for ancient authority that we by no means have suffered them to con- sign to oblivion the names of those learned in the law ; everyone of the old lawyers who wrote on law has been mentioned in our Digest ; all that we did was to provide that if, in the rules given by them, there appeared to be anything superfluous or imperfect or of small importance, it should be amplified or curtailed to the requisite extent and be reduced to the most correct form ; and in many cases of repetition or contradiction what appeared to be better has been set down instead of any other reading and included under one authority thus given to the whole, so that whatever has now been written may appear clearly to be ours and to be composed by our order, none being at liberty to compare the ancient text with what our authority has introduced, as in fact there have been many very important transformations made on the ground of practical utility. It goes as far as this, that where an Imperial enactment is set down in the old books, we have not spared even this, but. resolved to correct it and put it in better form ; leaving the very names of the old authority, but preserving by our emendations whatever the real sense of the statutes made suitable and necessary. Hence it came to pass that where of old there was any matter of doubt the question has now become quite safe and undisturbed, and no room for hesitation is left. 11. We saw however that the burden of all this mass of knowledge is more than such men are equal to bearing as are insufficiently educated and are standing in the vestibules of law, though on their way towards the secrets thereof, and we therefore were of opinion that a further compendious summary’ should be prepared, so that, thereby tinctured and so to speak imbued with the first elements of the whole subject, they might proceed to the innermost recesses thereof and take in with eyes undazzled the exquisite beauty of the law. We therefore summoned Tribonianus, that eminent man who had been chosen for the direction of the whole work, also Theophilus and Dorotheus, illustrious persons and most eloquent professors, and commissioned - them to collect one by one the books composed by old authors in which the first principles were to be found, and thereupon, what- ever they found in them that was useful and most to the purpose and polished in every point of view and in accordance with the practice of the present age, all this they were to endeavour to grasp and to put it into four books, so as to lay the first foundations and

1 mediocris emendatio. Gr. perpia cicaywyn.

Constitutio Tanta XXxXl

principles of education in general, and thus enable young men, supported thereon, to be ready for weightier and more perfect rules of law. We instructed them at the same time to bear in mind our own Constitutions as well, which we have issued with a view to the amendment of the law, and, in composing the Institutes, not to omit to insert the same improvement, so that it should be clear both where there had been any doubt previously, and what points had been afterwards established. The whole work, as accomplished by these men, was put before us and read through; whereupon we received it willingly and judged it to be not unworthy of our mind, and we ordered that the books should be equivalent to enactments of our own, as is more plainly declared in our own address which we have placed at the beginning of the whole. 12. The whole frame of Roman law being thus set forth and completed in three divisions, viz. one of the Institutes, one of the Digest or Pandects, and lastly one of the Constitutions, all being concluded in three years, whereas when the work was first taken in hand it was not expected to be finished in ten years, we offered this work too with dutiful intent to Almighty God for the preservation of mankind, and rendered full thanks to the Supreme Deity who vouchsafed us successful waging of war and the enjoyment of honourable peace and the giving of the best laws, not only for our own age, but for all time, both present and future. Therefore we saw it to be necessary that we should make manifest the same system of law to all men, to the end that they should recognise the endless confusion in which the law was, and the judicious and lawful exactitude to which it had been brought, and that they might in future have laws which were both direct and compendious within every one’s reach, and of such a nature as to make it easy to possess the books which contained them. Our object was that people should not simply be able by spending a whole mass of wealth to procure volumes containing a superfluous quantity of legal rules, but the means of purchasing at a trifling price should be offered both to rich and poor, a great deal of learning being procurable with a very small outlay. . 13. Should it chance that here and there, in so great a collection of legal rules, taken as it is from an immense number of books, some cases of repetition should occur, this no one must be severe upon; it should rather be ascribed first of all to human weak- ness, which is part of our nature, as indeed it belongs rather to the Deity than to mortal man to have a memory for all things and to come short in nothing, as indeed was said of old. It should also be borne in mind that there are some rules of exceeding

XXxil Constitutio Tanta

brevity in which repetition may be admitted to good purpose, and it has been practised in accordance with our deliberate intent, the fact being that either the rule was so material that it had to be referred to under different heads of inquiry, because the two subjects were connected together, or else, where it was involved in other different inquiries, it was impossible to exclude it from some passages without throwing the whole into confusion. And in these passages, in which there were well-reasoned arguments set forth by the old writers, it would be altogether an unlawyerlike proceeding to cut out and get rid of something that was inserted in one after another, as it would confuse the mind and sound absurd to the ears of anyone to whom it was presented. 14. In like manner, where any provision has been made by Imperial enactment, we have by no means allowed it to be put in the book of the Digest, as the reading of such enactments is all that is wanted ; save where this too is done for the same reasons as those for which repetition is admitted. 15. As for any contradiction occurring in this book, none such has any claim to a place in it, nor will any be found, if we consider nicely the grounds of diversity ; some special differential feature will be discovered, however obscure, which does away with the imputation of inconsistency, puts a different complexion on the matter and keeps it outside the limits of discrepancy. 16. Again should anything happen to be passed over which, among so many thousand things, was, so to speak, placed in the depth and lying hid, and being fit to be so [placed], [still] was covered with darkness and unavoidably was left out, who could with reason find fault with this, considering in the first place how limited is the mind of mortal man, and secondly the intrinsic difficulty of the case, where the passage, being closely bound up with a number of useless ones, gave the reader no opportunity of detaching it from the rest? It may be added too that it is much better that a few valuable passages should escape notice than that people should be encumbered with a quantity of useless matter. 17. There is one very remarkable fact which comes to light in these books, namely, that the old books, plentiful as they were, are found to be of smaller compass than the more compendious supply now open. The fact is that the men who carried on actions at law in the old days, in spite of the number of rules of law that had been laid down, still only made use of a few of them in the course of the trial, either because of a deficient supply of books, which it was out of their power to procure, or simply owing to their own ignorance ; and cases were decided according to the good pleasure of the judge

Constitutio Tanta XXxili

rather than by the letter of the law. In the present compilation, I mean in our Digest, the law is got together from numerous volumes, the very names of which the men of old could not tell, or rather had never heard ; and the whole has been composed. with an ample supply of matter in such sort that the ancient plenty appears defective while our own compendious collection is very rich. Of this ancient learning Tribonianus, most excellent man, has furnished us with a very large supply of books, a number of which were unknown even to the most erudite men; these were read through, and all the most valuable passages were extracted and found their way into our own excellent work. But the authors of this composition did not peruse those books only from which they took the rules they have set down; they read a great deal more, in which they found nothing of value or nothing new which they could extract and insert in our Digest, and which accordingly they very reasonably rejected. 18. Now whatever is divine is absolutely perfect, but the character of human law is to be con- stantly hurrying on, and no part of it is there which can abide for ever, as nature is ever eager to produce new forms, so that we fully anticipate that emergencies may hereafter arise which are not enclosed in the bonds of legal rules. Wherever any such case arises, let the August remedy be sought, as in truth God set the Imperial dispensation at the head of human affairs to this end, that it should be in a position, whenever a novel contingency arrives, to meet the same with amendment and arrangement, and to put it under apt form and regulations. We are not the first to enunciate this, it comes of an ancient stock ; Julianus himself, that most acute framer of statutes and of the Perpetual Edict, set down in his own writings that wherever anything should turn out defective, the want should be supplied by Imperial legislation. Indeed not only he but the Divine Hadrianus, in the consolidated Edict and the Senatusconsultwm which followed it, laid down in the clearest terms that where anything was not found to be set down in the Edict, later authority might meet the defect in accordance with the rules, the aims and the analogy thereof. 19. Now therefore, conscript fathers and all men in the whole world, render fullest thanks to the Supreme Divinity, who has kept so greatly beneficial a work for your times: in truth, that of which those of old time were not in the Divine judgment held to be worthy has been vouchsafed to your age. Worship therefore and keep these laws, and let the ancient ones sleep ; and let none of you so much as compare them with the former ones, nor, if

XXXiv Constitutio Tanta

there be any discrepancy between them, ask any question, seeing that, whatsoever is set down here, we desire that it alone should be observed. Moreover in every trial or other contest, where rules of law have to be enforced, let no one seek to quote or maintain any rule of law save as taken from the above-mentioned Institutes or our Digest or Ordinances such as composed and promulgated by us, unless he wish to have to meet a charge of forgery as an adulterator, together with the judge who allows such things to be heard, and to suffer most severe penalties. 20. Lest however it should be unknown to you what those books of old lawyers are from which this composition is taken, we have ordered that this likewise should be set down at the beginning of our Digest, so that it may be quite clear who are the authorities and which are the books written by them, and how many thousands of these there are on which this temple of Roman jurisprudence has been constructed. 20a. Of legal authorities or commentators we have chosen those who were worthy of so great a work as this, and whom older most devoted Emperors did not scorn to admit ; we have given all of them one pinnacle of rank, and none is allowed to claim any pre- eminence for himself. Indeed, seeing that we have laid down that the present laws themselves should be equivalent to enactments issued by us, how should any greater or less importance be attributed to any amongst them, where one rank and one authority is vouchsafed to all? 21. One thing there is which, as it seemed good to us at the very beginning, when with the Divine sanction we commissioned the execution of this work, so it seems opportune to us to command now also; this, namely, that no man of those who either at this day are learned in the law or hereafter shall be such shall venture to append any commentary to these laws, save so far as this, that he may translate them into the Greek tongue with the same order and sequence as those in which the Roman text is written, or, as the Greeks call it, cata dda, or, if he likes to make any notes for difficulties in the various titles, he may compose what are commonly called zapatitXa. Any further interpretations, or rather perversions, of these rules of law we will not allow them to exhibit, for fear lest their long dissertations cause such confusion as to bring some discredit on our legislation. This happened in . the case of the old commentators on the Hdictum perpetuum, for, although that work was composed in a compendious form, these men, by extending in this way and that to divers intents, drew it out beyond all bounds so as to bring almost all Roman law into confusion ; and, if we do not put up with them, how can we ever

Constitutio Tanta XXXV

allow room for the vain disputes of future generations? If any should venture to do such things, they will themselves be liable to be prosecuted for forgery, but their books will be altogether set at nought. But if, as before said, anything should appear doubtful, this must be by the judges referred to the Imperial Majesty, and the truth be pronounced on the Augustal authority, to which alone it belongs both to make and to interpret laws. 22. We lay down also the same penalty on the ground of forgery for those persons who at any future time should venture to write down our laws by the occult means of ciphers. We desire that everything, the names of authors as well as the titles and numbers of the books, should be plainly given in so many letters and not by means of marks, so that anyone who gets for himself one of these books in which there are marks used in any passage whatever of the book or volume will have to understand that the codex which he owns is useless ; if anyone has these objectionable marks in any part of a codex such as described, we decline to allow him to cite any passage therefrom in Court ; and a clerk who should venture to write such marks will not only be punished criminally, as already mentioned, but he will also have to give the owner twice the value of the book, if the owner himself either bought such a book or ordered it to be written without notice. This provision has already been issued by us both in a Latin enactment and in Greek and sent to the professors of law. 23. These our laws, which we have set down in these books, I mean the Institutes or Elements and the Digest or Pandects, we desire should be in force from and after our third most happy Consulship, on the third day before the Kalends of January in the present twelfth Indiction, laws which are to hold good for all time to come, and which, while in force together with our own ordinances, may display their own cogency in the Courts in all causes, whether they arise at some future time or are still pending in the Court, because they have not been settled by any judgment or terms of arrangement. Any cases that have been disposed of by judicial decree or set at rest by friendly compromise we do not by any means wish to have stirred up again. We have done well to make a point of bringing out this body of law in our third Consulship, as that Consulship is the happiest one which the favour of Almighty God and of our Lord Jesus Christ has given to our State ; in it the Parthian wars were put an end to and consigned to lasting rest, moreover the third division of the world came under our sway, as, after Europe and Asia, all Libya too was added to our dominions, and now a final completion is

XXXVi Constitutio Tanta

made of the great work on our law, [so that] all the gifts of Heaven have been poured on our third Consulship. 24. Now therefore let all our judges in their respective jurisdictions take up this law, and both within their own provinces and in this royal city observe and apply it, more especially that distinguished man the Prefect of this revered city. It will be the duty of the three distinguished Pretorian Prefects, the Oriental, the Illyrian, and the Libyan, to make the same known by the exercise of their authority to all those who are subject to their jurisdiction.

Given on the seventeenth day before the Kalends of January in the third Consulship of our Lord Justinianus.

DIGEST OF JUSTINIAN..-

FIRST BOOK.

1

If On JUSTICE AND LAW.

ULPIANUS (Jnstitutes 1) When a man means to give his attention to law (jus), he ought first to know whence the term jus is derived. Now jus is so called from justitia; in fact, according » to the nice definition of Celsus, jus is the art of what is good and fair. 1. Of this art we may deservedly be called the priests ; we cherish justice and profess the knowledge of what is good and fair, we separate what is fair from what is unfair, we discriminate between what is allowed and what is forbidden, we desire to make men good, not only by putting them in fear of penalties, but also by appealing to them through rewards, proceeding, if I am not mistaken, on a real and not a pretended philosophy. 2. Of this subject there are two départments, public law and private law. Public law is that which regards the constitution of the Roman state, private law looks at the interest of individuals; as a matter of fact, some things are beneficial from the point of view of the state, and some with reference to private persons. Public law is concerned with’ sacred rites, with priests, with public officers. Private law has a threefold division, it is deduced partly from the rules of natural law, partly from those of the jus gentium, partly from those of the civil law. 3. Natural law is that which all’ animals have been taught by nature ; this law is not peculiar to the human species, it is common to all animals which are produced on land or sea, and to fowls of the air as well. From it comes the union of man and woman called by us matrimony, and therewith the procreation and rearing of children ; we find in fact that animals in general, the very wild beasts, are marked by acquaint- ance with this law. 4. Jus gentiwm is the law used by the various tribes of mankind, and there is no difficulty in seeing that it falls short of natural law, as the latter is common to all animated beings, whereas the former is only common to human beings in respect of their mutual relations;

1 For constitit read consistit.

2

4 On Justice and Law [BOOK I

Pomponius (Enchiridion) take, for example, religion as observed towards God ; or the duty of submission to parents and country ;

FLORENTINUS (Institutes 1) or the right of repelling violence and wrong; it is in fact by virtue of this law that whatever a man does in defence of his own person he is held to do lawfully ; and Nature having made us in a certain sense akin to one another, it follows that it is a monstrous thing for one man to lie in wait for another.

ULPIANUS (Institutes 1) Manumissions also are comprised in the jus gentiwm. Manumission is the same as dismissal from manus (hand), in short the giving of liberty ; as long as a man is in a state of slavery he is subject to manus and potestas (control), by manumission he is freed from control. All this had its origin in the jus gentium, seeing that by natural law all were born free, and manumission was not known, because slavery itself was unknown ; but when slavery came in through the jus gentiwm, there followed the relief given by manumission ; and whereas people were once simply called by the one natural name of ‘man, by the jus genttum there came to be three divisions, first freemen, then, as contradistinguished from them, slaves, and then, in the third place, freedmen, that is persons who had ceased to be slaves.

HERMOGENIANUS (Epitomes of law 1) It was by this same jus gentium that war was introduced, nations were distinguished, kingdoms were established, rights of ownership were ascertained, boundaries were set to domains, buildings were erected, mutual traffic, purchase and sale, letting and hiring and obligations in general were set on foot, with the exception of a few of these last which were introduced by the civil law.

ULPIANUS (Institutes 1) The civil law is something which on the one hand is not altogether independent of natural law or gus gentiwm, and on the other is not in every respect subordinate to it ; so that when we make addition to or deduction from universal law (jus commune), we establish a law of our own, that is, civil law. 1. Now this law of ours is either ascertained by writing or with- out writing ; as the Greeks say, tay vouwy of perv eyypado. ot dé aypapot—(of laws some are in writing and some are not in writing).

PAPINIANUS (Definitions 2) —_ The civil law is the law which is derived from statutes, plebiscites, decrees of the senate, enactments of the emperors, or the authority of those learned in the law. 1. Preetorian law is that which was introduced by the przetors in

10

11

12

TIT. I] On Justice and Law 5

order to aid, supplement, or amend the civil law, with a view to the public advantage. The same is also called ‘honorary law,’ after the honor (public office) of the prectors.

MARCIANUS (Institutes 1) In fact honorary law itself is the living voice of the civil law.

Gaius (Institutes 1) All nations which are governed by statutes and customs make use partly of law which is peculiar to the respective nations, and partly of such as is common to all mankind. Whatever law any nation has established for itself is peculiar to the particular state (czvitas), and is called civil law, as being the peculiar law of that state, but law which natural reason has laid down for mankind in general is maintained equally by all men, and is called jus gentiwm, as being the law which all nations use.

ULPIANuS (Rules 1) —_ Justice is a constant, unfailing disposi- tion to give every one his legal due. 1. The principles of law are these: Live uprightly, injure no man, give every man his due. 2. To be learned in the law (yurtsprudentia) is to be acquainted with divine and human things, to know what is just and what is unjust.

Pavuus (on Sabinus 14) The word jus is used in a number of different senses : in the first place, in that in which the name is applied to that which is under all circumstances fair and right, as in the case of natural law ; secondly, where the word signifies that which is available for the benefit of all or most persons in any particular state, as in the case of the expression civil law. With equal correctness the term jzs is applied in our state to honorary law. We may add that the preetor is said to administer the law even when he gives an unjust judgment, the word referring not to what the preetor did in the particular case, but to what it is his business to do. The term jus is applied in another sense to the place in which law is administered, the name being transferred from the thing done to the place where it is done. What place that is may be stated as follows: whatever place the preetor fixes upon in which to dispense justice, so as he maintain unimpaired the dignity of his own authority and the customs of our forefathers, that place is properly termed jus.

MARCIANUS (Institutes 1) We sometimes apply the word jus to the tie of a personal connexion, for example a man may say ‘I have a jus cognationis or affinitatis’ (I am connected by blood or marriage) with such a one.

6 On the Origin of Law [BOOK I

Il.

ON THE ORIGIN OF LAW AND OF THE DIFFERENT MAGISTRACIES, AS WELL AS THE SUCCESSION OF THOSE LEARNED IN THE Law.

1. Garus (on the Law of the Twelve Tables 1) Having undertaken to give an exposition of ancient statutes, I have as a matter of course thought it right to go back for my account of the law of the Roman people’ to the foundation of the city ; not that I have any desire to write unduly verbose commentaries, but because I observe that in all subjects a thing is only perfect when it is com- plete in all its parts, and undoubtedly the most essential part of anything is its beginning. Besides this, if with men who are arguing cases in the forwm it is, so to speak, a monstrous thing to set the matter forth to the judge, without first making some introductory statement ; how much more unsuitable must it be for one who has undertaken to give an exposition to disregard the beginning and omit reference to historical causes, and so to take up at once with unwashed hands, if I may use the expression, the subject-matter which has to be expounded? The fact is, so it strikes me, that some introduction such as I have mentioned makes people more willing to approach the study of the matter in hand, and, when they have got so far, causes the subject itself to be more easily comprehended.

Pompontus (Enchiridion) Accordingly it seems requisite to set forth the origin and development of law itself. 1. Now at the time of the origin of our state the citizens at large (populus) undertook at first to proceed without fixed statutes or any fixed law at all, and everything was regulated by the direct control of the kings. 2. After that, the state being more or less enlarged, the tradition is that Romulus himself divided the body of the citizens into thirty parts, which parts he called cure, for the reason that he exercised his care (cwra) of the commonwealth in accordance with the opinions of the parts referred to. Accord- ingly he himself proposed to the people certain curiate statutes, and the kings that succeeded him did the same thing ; all which statutes exist in writing in the book of Sextus Papirius, who was

1 For prius read PRius (populi Romani jus). M.

TIT. 11] On the Origin of Law 7

contemporary with Superbus the son of Demaratus of Corinth, and was one of the leading men. That book, as above mentioned (s7c), is called the Papirian civil law ; not that Papirius inserted anything in it of his own composition, but because statutes which had been passed in an unsystematic way were (therein) reduced by him to a single body of law. 3. The kings being subsequently expelled by a tribunician statute, the above statutes all went out of use, and the Roman people came once more to live by loosely ascertained law or by mere custom rather than by any formal statute, to which condition it submitted for about twenty years. 4. Afterwards, in order to put an end to this state of things, it was determined that ten men should be appointed by the authority of the state through whom application should be made for statutes to Greek cities, and the Roman state should be put on a statutable foundation. The laws so obtained they wrote on ivory tablets, and set them up before the rostra, to the end that they might be the more clearly perceptible, and supreme authority in the state was given for that year to the officers mentioned, their duty being to amend the statutes, where necessary, and also to expound their meaning, and there was to be no appeal from their decisions as there was from those of magistrates in general. They, however, themselves took note of certain deficiencies in the original statutes just referred to, and, accordingly, in the course of the ensuing year they added two more tables to those already existing ; hence the statutes taken all together were called the statutes of the Twelve Tables. It has been stated by some writers that the passing of these laws was suggested to the Tenmen by one Hermodorus, an Ephesian, who was living as an exile in Italy. 5. These statutes being enacted, it thereupon followed that discussion in the forwm (disputatio fort) became a necessity, as in fact it naturally must be the case that correct interpretation requires the guidance of those learned in the law. [The results of] such discussion, and the rules of that particular law which is composed by the learned and established without the use of writing, are not called by any special name? like the other parts of the law which have their respective designations ; *they are both comprised under the general appellation of civil law. 6. After this there were at about the same time various forms of actions devised, founded on the above statutes, by which people in general might carry on litigation; and in order to prevent the citizens from bringing their actions in any way they pleased,

* parte must be a slip of the pen. We are obliged to read appellatione. v. M. * datis propriis nominibus ceteris partibus del. Hal.

8 On the Origin of Law [BOOK I

the Tenmen required that they should be in set and solemn form. This branch of the law is called that of statute-actions (legis actiones), in other words, statutable actions (legitemce actiones). Accordingly, these three branches of law arose at about the same time, that is to say, the statute of the Twelve Tables was first passed’, these tables gave rise to the civil law, and in accordance with the same were devised the statute-actions. But, in connexion with all these statutes, the knowledge of the way to interpret them and the conduct of actions founded upon them was left to the College of Pontifices, and it was laid down by order which of these should superintend private causes every year; and the people continued to conform to this usage for about a hundred years. 7. Afterwards, Appius Claudius having propounded and reduced to form the actions above mentioned, Gnzeus Flavius, his secretary, the son of a freedman, purloined the book and put it in the hands of the people at large, at which service the people were so much gratified that he was made a tribune of the plebs as well as a senator and a curule eedile. The book itself, which contains the forms of action, is called the Flavian civil law, on the same principle as that on which a book already mentioned is called the Papirian civil law, for Gn. Flavius, like Papirius, inserted nothing in the book of his own composition. As the Roman state increased, certain kinds of application not being available, after no long time Sextus Ailius composed additional forms and presented to the people the book which is known as the Alian civil law. 8. Here- upon, there being in public use the statute of the Twelve Tables and the civil law, and also the statute-actions, it came to pass that discord arose between the plebs and the fathers, whereupon the former seceded and established laws for itself, which laws are called plebiscites. Soon after, on the plebs being induced to return, a great deal of disagreement arose in connexion with these plebiscites, in consequence of which it was enacted by the lex Hortensia that they should be observed as if they were regular statutes. The result of this was that the difference between a plebiscite and a statute consisted thereafter in the formal method of enactment, but the force of the two was the same. 9. Next, seeing that the plebs found in course of time that it was difficult for them to meet together, and the general body of the citizens no doubt found it much more difficult still, considering the vast increase of their numbers, the very necessity of the case caused the administration of the commonwealth to be put in the hands of the senate; hence

1 Inser. lataque before lege. M.

TIT. 1] On the Origin of Law 9

that body came to take a new part in the management of affairs, and whatever it enacted was observed as law, the enactment being called a senatus-consultum. 10. At this time, besides the above, there were magistrates who administered justice, and in order that the citizens might be aware what kind of pronouncement the officer would make in any given case and take their measures accordingly, the magistrates published edicts. The edicts of the preetor constituted the honorary law, the name honorary being derived from the public office (honos) of the preetor. 11. Lastly, in accordance with the growing uniformity in the methods of creating law which [the state] was found to have already adopted bit by bit, as the occasion required, it came to be a matter of necessity that the business of providing for the public welfare should be in the hands of one man, as it was impossible for the senate to carry on with the same diligence every department of the administration ; accordingly a head of the state was established, and he was entrusted with power to the effect that whatever he laid down should be held valid. 12. Hence in our state [the sources of law are as follows:—] a rule may depend on law properly so called, that is, on a statute ; or there is the special and particular civil law which is established without writing by mere interpretation on the part of the learned ; again, there are the statute-actions, which give the proper formalities to be used in pleading, or there may be a plebiscitwm, which is enacted without the authority of the fathers ; furthermore there are the edicts of the magistrates, from which is derived the honorary law, or there is a senatus-consultum which takes its force simply from the fact of being enacted by the senate, though there is no statute strictly so called ; or, [lastly,] there is an imperial ordinance, the law being that whatever is enacted by the Emperor himself must be observed as if it were a regular statute.

13. Now that we are acquainted with the origin and progress of the law, the next thing is to note the titles of the various magistrates and the origins of their respective offices, since, as we have already shown, it is through those who preside at the administration of justice that practical results are secured. What advantage is there in the existence of law in the state, if there are no officers to conduct its administration? After that we will treat of the succession of learned authorities, as there can be no consistent body of law at all, unless there are persons acquainted with the law by whom it can from day to day be advanced and improved. 14. With regard to magistrates, there is no doubt

10 On the Origin of Law [ BOOK I

that in the earliest times of the Roman state all power was in the hands of the kings. 15. It is clear that there was also in those days a tribunus celerum; he was the officer who was at the head of the horsemen, and he may be said to have occupied the first place next after the king ; such an officer was Junius Brutus, who took the lead in the matter of expulsion of the king. 16. After the kings were expelled, two consuls were established, and it was provided by statute that they should exercise supreme authority ; their name was derived from the fact that they above all others ‘consulted’ the interest of the commonwealth. Lest however they should lay claim in all respects to the power that had been wielded by the kings, a statute was passed which provided that there should be an appeal from their decisions, and that they should not be able to inflict capital punishment on a Roman citizen without the order of the people: all that was left them was the power of summary coercion (wt coercere possent), and of ordering persons to be imprisoned in the name of the state. 17. After this, as the business of conducting the census required a longer time, and the consuls were not equal to this in addition to their other duties, censors were appointed. 18. Then, as the nation increased in numbers and frequent wars arose, including some of considerable severity waged against Rome by bordering tribes, it was sometimes resolved, when the case required it, that a magistrate should be appointed endowed with exceptional powers ; accordingly dictators were instituted, from whom there was no appeal, and who even had conferred upon them the right of in- flictng capital punishment. But it was not held right that such a magistrate, wielding as he did supreme power, should be retained in office for more than six months. 19. The dictators were required to have magistri equitum (masters of the horsemen) just as the kings were to have tribunit celerum (officers of cavalry); the office was very much the same as the present office of pre- Jectus pretorio, still the holders were considered statutable magistrates. 20. About the same time the plebs, which had seceded from the patres some sixteen years after the expulsion of the kings, created tribunes for themselves on the Sacred Mount by way of plebeian magistrates. They were called tribunes because at one time the whole body of the citizens was divided into three parts, and one tribune was created from each part; or because they were created by the votes of the tribes. 21. Moreover, in order that there should be officers to superintend the temples, in which the plebs used to deposit all their enactments, two

TIT. 11] On the Origin of Law 11

members of the plebs were appointed who were called cediles. 22. Afterwards, when the national finance had come to be on a larger scale, in order to provide officers to preside over it, queestors were appointed to superintend money matters, so called because they were created for the purpose of inquiring into [the state of the treasury | and guarding the money. 23. And whereas, as has been mentioned, the consuls were not permitted by law to hold a court for trying a Roman citizen in a capital case without the leave of the people, for this reason queestors were appointed by the people to preside in capital causes; they were called qucestores parricidit ; these are in fact mentioned in the statute of the Twelve Tables. 24. It being also resolved that a body of statutes should be passed, — it was proposed to the people that all the magistrates should go out of office in order that Tenmen [should be created for the purpose of drawing up statutes. Accordingly the Tenmen'] were appointed for one year; but whereas they contrived to prolong their office, and were guilty of oppressive practices, and Ueclined, when the time came, to appoint their successors in office, their object being that they themselves and their faction should keep the government in their own hands without interruption, they brought matters to such a pass by their harsh and tyrannical domination that the army deserted the state. The author of the secession is said to have been a certain Verginius, who found that Appius Claudius, contrary to the rule which he had himself taken from the old law and inserted in the Twelve Tables, had refused to give him the interim custody of his own daughter [pending the trial of the question of her status] and had granted it to a man who had been set on by the judge himself to claim her as his slave; so that, carried away by his desire for the girl, he, the judge, had upset all rules of right and wrong. Verginius, finding this, so it was said, and indignant at such a departure, in the case of his own daughter, from a very long-established rule of law (the fact being that Brutus, the earliest consul at Rome, had allowed interim liberty in the case of Vindex, the slave of the Vitellii, whose in- formation had brought to light a treasonable conspiracy), Verginius, I say, who deemed’ the honour of his daughter more precious than even her life, snatched a knife from the shop of a butcher and killed her with it, his object being that the girl’s death should preserve her from the dishonour of suffering foul outrage, and thereupon, fresh from the deed, before his daughter’s blood was dry, he took

1 The portion in brackets was probably omitted by mistake. v. M. 2 Read putans for putaret. M.

12 On the Origin of Law [BOOK I

refuge with the ranks of his fellow-soldiers. The legions were at that time at Algidum, on a military expedition, but the whole army at once abandoned their actual leaders and carried the standards to the Aventine mount, soon after which the plebs of the city betook themselves in a body to the same spot, and by the common consent of the citizens [the Tenmen] were [some of them driven into exile and'] some put to death in prison; whereupon the commonwealth returned once more to its previous condition. 25. Next, several years having elapsed after the passing of the Twelve Tables, a contest arose between the plebs* and the patres, the former desiring that the consuls should be chosen® out of their own body as well as from the patres, to which the latter refused to consent ; whereupon it was resolved that military tribunes should be created with consular power, being taken partly from the plebs and partly from the patres. The number of these officers varied from time to time, sometimes there were twenty, sometimes more, occasionally not so many. 26. Afterwards, it having been resolved that the consuls might be taken from the plebs itself, they came to be appointed from both bodies ; whereupon, by way of allowing the patres some kind of precedence‘, it was resolved that two officers should be appointed from their number [to superintend the games’ ], and this was the origin of the curule zediles. 27. Again, * as the consuls were called away by wars on the border, and there was thus no one left to administer justice at home, it came to pass that in addition to them a praetor was created who was called the praetor urbanus, because he administered justice in \ the city. 28. Some years after this, as this preetor was not equal to the discharge of his duties, in consequence of the excessive crowding of actual foreigners into the city, another praetor was created in addition, called the preetor peregrinus, because his chief duty was to administer justice to the peregrina (foreigners). 29. Again, it was necessary that there should be some magistrate to preside’ at the court of the hasta ; accordingly the ‘Tenmen for’ determining causes’ were appointed. 30. About the same time were also appointed the ‘Fourmen to take charge of highways’ and the ‘Threemen of the Mint’ who melted bronze, silver, and gold; also the ‘Threemen for capital cases’ who were to have the

1 Words in brackets probably omitted by mistake. M.

2 Read cum post aliquos annos quam duodecim tabula late sunt plebs. M. 3 Read creari for creare. M.

4 Read plus juris for pluris. M. 5 M.

6 Read preesset for prewessent. M. 7 Del. in. Hal.

TIT. 1 | On the Origin of Law 13

care of the prison, so that, when punishment was to be inflicted, it might be done by their agency. 31. And as it was unsuitable for the magistrates to be engaged in public affairs in the evening, there were appointed the Fivemen for the hither side and the other side of the Tiber who might act in the place of the magistrates. 32. After this, Sardinia being annexed, then Sicily, also Spain, and next the province of Narbo, so many additional preetors were appointed, corresponding to the number of provinces which had come under the Roman sway, some of which preetors had to super- intend home, and some provincial affairs. Later on, Cornelius Sylla instituted State inquisitions (qucestiones publicee), for ex- ample, for forgery (de jfalso), for parricide, for stabbers ; and he also created four additional preetors. Next Gaius Julius Cesar appointed two preetors and two ediles to preside over the distri- bution of corn, who! were to be called Cereal, from the goddess Ceres. Thus there were created twelve preetors and six zediles. After this the Divine Augustus appointed sixteen preetors. Then the Divine Claudius added two more preetors to hold courts on questions of testamentary trusts (de fideicommisso), but one of the two was suppressed by the Divine Titus; and the Divine Nerva added a judge who should adjudicate on cases between the fiscus and private persons. This makes the number of persons who administer justice in the state eighteen. 33. All the above holds good as long as the magistrates are at home ; but whenever they leave the city, one is left to administer justice who is entitled prefectus urbt. He used at one time to be appointed when the others took their departure’, afterwards he may be said to have been regularly instituted on account of the Latin festivals, and the appointment is made every year. The fact is that the pre- fect of the corn supply and the prefect of the watch (prafectus annone and preefectus vigilum) are not magistrates, they are extraordinary officers appointed in the interest of the public. At the same time the Cistiberes above referred to (tribunes for the hither side of the Tiber) were by a decree of the senate after- wards made eediles. 34. On the whole then, as it appears by the above, there were ten tribunes of the plebs, two consuls, eighteen preetors and six eediles exercising jurisdiction in the city. 35. The knowledge of civil law has been professed by a great number of distinguished men; we will at present mention such of them as held the first rank in the estimation of the Roman people, so as to set forth the names and characters of those who originated

1 Read et dicerentur. Of. M. 2 Read profectis iis for prefectus. Cf. M.

14 On the Origin of Law [BOOK I

and handed down our rules of law. Of all those who acquired systematic knowledge, no one, so the tradition is, made a public profession of it before Tiberius Coruncanius; all those who preceded him either desired to keep the civil law in the back- ground, or else! were in the habit of bestowing their time on such as consulted them, rather than putting themselves at the disposal of persons who wished for systematic instruction. 36. One lawyer of pre-eminent learning was Publius Papirius, who drew up a consolidated version of the Royal statutes (leges regiw). After him came Appius Claudius, one of the Tenmen, who had the chief voice in the composition of the Twelve Tables. After him another Appius Claudius of the same family possessed the greatest know- ledge of the law; he was called the hundred-handed, he laid down the Appian road, he made the aqueduct for the Claudian water, he voted that Pyrrhus should not be admitted into the city; and he it was, according to tradition, who first wrote forms of action for cases of interruption to possession, but his book is not extant. The same Appius Claudius devised the letter R, a consequence of which seems to have been that Valesii was turned into Valerii and Fusii into Furii®. 37. A man of very great learning after these was Sempronius, whom the Roman citizens called codcs (the wise), and no one else either before or after him received that surname. [Then there was] Gaius Scipio Nasica, who was called by the senate ‘the Best’; in addition to which he was presented by the state with a house in the Via Sacra, so as to make it more easy to consult him. Next came Quintus Mucius; he was once sent as envoy to Carthage, where, two dice being laid before him, one for ‘peace’ and the other for ‘war,’ he was given the choice between them and requested to take back to Rome whichever he preferred; where- upon he took up both, saying that the proper course was for the Carthaginians to ask for whichever of the two they would rather receive. 38. The above were succeeded by Tiberius Coruncanius, who, as already mentioned, was the first public professor of law ; there is however no written work of his to be met with, though his formal opinions were numerous and noteworthy. After him Sextus lius and his brother Publius Alius and also Publius Atilius dis- played very great learning as public teachers, so much so that the two A#lii were in fact made consuls, and Atilius was the first person

1 Perhaps read vel solebant for solumque. v. M.

* Read idem A. C. R literam invenit videturque ab hoe processisse ut ete. for idem A. C. qui videtur ab hoe processisse R literam invenit ut ete., which is absurd. (Muret.)

TIT. I1| On the Origin of Law 15

to whom the people gave the title of Sapiens. Indeed Sextus ABlius is mentioned by Ennius, and there exists a book of his bearing the title Tripertita, containing a sort of cradle of the law; it is called 7ripertita because in it we have first the statute of the Twelve Tables, this is followed by an exposition, and lastly the work concludes with the statute-actions. There are three other books which are said to be by the same author, though some persons maintain that this is not the case; these latter have been to some extent followed by Cato. We next have Marcus Cato, the head of the Porcian family, and some books are extant written by him; but there are a great many by his son, and it is on these last that the subsequent works are founded. 39. After these were Publius Mucius and Brutus and Manilius, who were the founders of the civil law. Of these P. Mucius left as many as ten treatises, Brutus seven, Manilius three; and written rolls of Manilius are preserved!, The two former were of consular rank, Brutus had been preetor, P. Mucius had been even Pontifex Maximus. 40. Pupils of these were Publius Rutilius Rufus, who was consul at Rome and proconsul of Asia, Paulus Verginius and Quintus Tubero, the well-known Stoic, who studied under Pansa and was himself consul. Sextus Pompeius, the paternal uncle of Gnzeus Pompeius, lived at the same time, and so did Ceelius Antipater, an author of historical works, but a man who bestowed more pains on the art of public speaking than on legal learning; there was also Lucius Crassus, brother to Publius Mucius, who was called Munianus, this last is said by Cicero to have been the best speaker of all jurisconsults. 41. After these Quintus Mucius, the Pontifex Maximus, son of Publius, was the first who made a digest of the civil law, which he arranged under heads in eighteen books. 42. Mucius had a great number of pupils, but those of most authority were Aquilius Gallus, Balbus Lucilius, Sextus Papirius, and Gaius Juventius ; of these Gallus is reported by Servius to have had most authority with the people at large. They are how- ever all cited by Servius Sulpicius; but no original works of these men are extant of such a character as to be in general demand ; indeed their writings are not in frequent and general use at all, though Servius* constantly made use of them in compiling his own books, and it is owing to his writings that they themselves are held in remembrance. 43. Servius Sulpicius, at a time when he occupied the chief place as a pleader of causes, or, at any rate, the next after Marcus Tullius [Cicero], is said to have gone to Quintus

1 Del. monuwmenta. M. 2 After Servius insert iis.

16 On the Origin of Law | BOOK I

Mucius for his advice about an affair in which a friend of his was concerned, and to have very imperfectly understood an answer which Mucius gave him! on a point of law. Hereupon, as the story is, he asked the question again, and received an answer from Mucius, which he still failed to comprehend, which drew upon him a severe reproach from Mucius; it was disgraceful, he said, that a patrician, a member of a family of distinction and a pleader of causes, should be unacquainted with the law in which his business lay. Stung with this taunt, so to call it, Servius took pains to learn the civil law, and received a great deal of instruction from teachers above mentioned ; he was taught by Balbus Lucilius, and helped on his way a great deal by Gallus Aquilius who lived at Cercina ; hence it comes that a great many works of his now extant were composed at that place. Servius died in the course of serving as a legate, whereupon the Roman people erected a statue to him before the rostra, which is to be seen at this day in front of the rostra of Augustus. A number of rolls of his works are in existence ; he left behind him nearly a hundred and eighty books. 44. Many lawyers derived instruction from him, among whom the following were the chief writers: Alfenus Varus [Gaius”], Aulus Ofilius, Titus Ceesius, Aufidius Tucca, Aufidius Namusa, Flavius Priscus, Gaius Ateius, Pacuvius Labeo | Antistius], the father of Labeo Antistius, Cinna, Publicius Gellius. Of these ten, eight wrote books, the matter of the whole of whose existing works was arranged by Aufidius Namusa in a hundred and forty books. Among the above- mentioned pupils [of Servius| those of greatest authority were Alfenus Varus and Aulus Ofilius; Varus attained the consulship, Ofilius always kept his equestrian rank. He was on very intimate terms with the Emperor, and he left a large number of books on civil law which were intended to serve as a groundwork in every part of the subject. He was* the first author to write about the statutes relating to the five per cent. duty; he was also the first to make a careful arrangement of the matter of the preetor’s edict so far as it bore on jurisdictio; though before him Servius left two very short books addressed to Brutus bearing the title On the Edict. 45. An author of the same day was Trebatius, he was a pupil of Cornelius Maximus; there was also Aulus Cascellius, a pupil of Quintus Mucius Volusius‘, in fact in honour of his instructor, 1 Read respondentem for respondisse. v. M. : 2 The names in brackets may perhaps be omitted, v. M.

3 Read conscripsit for conscribit. 4 | read Quinti Muci for Quintus Mucius, but the text is hopeless.

TIT. 11] On the Origin of Law 17

he made Mucius’s grandson Publius Mucius his heir. He was a man of queestorian rank, and he did not care to rise higher, though Augustus himself offered him the consulship. Among the three last- named, Trebatius, it is said, had more practical acquaintance with law than Cascellius, but Cascellius surpassed Trebatius in eloquence, while Ofilius excelled both in learning. No works of Cascellius re- main, except a single book of “good sayings.’ There area good many books of Trebatius, but they are not much used. 46. After these came Q.’ Tubero, who studied under Ofilius ; he was a patrician, and he gave up the business of a pleader for the study of the civil law, his chief reason for this being that he had prosecuted Quintus Ligarius before Gaius Ceesar without success. Quintus Ligarius was the man who, being in command on the African coast, refused to allow Tubero to land when he was ill, or to take water, on which Tubero prosecuted him, and Ligarius was defended by Cicero ; Cicero’s oration is preserved, and may fairly be called a very fine one; it is entitled Defence of Quintus Ligarius. Tubero was accounted most learned in public and private law, and he left a great many books on both subjects, but he affected antique language in his writing, and for that reason his books are not popular. 47. After him very great authority was allowed to Ateius Capito, who followed Ofilius, and Antistius Labeo, who studied under all the above (szc); though he was especially instructed by Trebatius. Of these two, one, Ateius, was consul ; Labeo, when the same office was offered him by Augustus, the holding of which would have made him énterim consul (consul suffectus), declined to accept it, but he bestowed great pains on legal studies. In the prosecution of these he divided the year into two parts, so as to pass six months at Rome with his pupils, and for the remaining six months to be absent and give himself up to writing books. In the end he left four hundred volumes, many of which are in constant use. These two men may be said to have founded two schocls respec- tively; Ateius Capito adhered to the doctrines which had reached him by tradition ; Labeo, who was gifted with original ability and relied on his own learning, having given attention to many other branches of knowledge, undertook to make a good many innova- tions. 48. In connexion with this distinction, Ateius Capito was succeeded by Massurius Sabinus, and Labeo by Nerva; these two in fact widened the difference between the two schools above mentioned. Nerva was on very intimate terms with the Emperor. Massurius Sabinus was a member of the equestrian order, and was

1 Read Q. for guogue. Cf. M M. J. 2

18 On the Origin of Law [BOOK I

the first to give opinions in the public interest (publice); tthe fact being that after this privilege had come to be given, it was allowed to him by Tiberius Ceesart.1 49. It may be observed in passing that before the days of Augustus the right of delivering opinions in the public interest was not granted by the head of the state, but any persons who felt confidence in their own learning gave answers to such as consulted them ; moreover they did not always give their answers under seal ; they very often wrote to the judge themselves, or called upon those who consulted them to testify to the opinions they gave. The Divine Augustus was the first to lay down, in order to ensure greater authority to the law, that the jurisconsult might deliver his answer in pursuance of an authoriza- tion given by himself; and from that time such an authorization was asked for as a favour. It was in consequence of this that our excellent Emperor Hadrian, on receiving a request from some lawyers of przetorian rank for leave to give legal opinions, answered the applicants that this privilege was not usually asked for but granted [or that there was no leave asked for this practice, it was simply carried out], consequently, if any one were confident of his powers, he (the Emperor) would be much pleased to find that? he took steps to qualify himself for delivering opinions to the citizens. 50. Accordingly leave was given to Sabinus by Tiberius Ceesar to deliver opinions to the citizens. Sabinus himself was admitted into the equestrian order at an advanced time of life, in fact at about the age of fifty. He was not a man of ample means, but he was maintained to a great extent by his pupils. 51. Sabinus was suc- ceeded by Gaius Cassius Longinus, the son of a daughter of Tubero’s, who herself was grand-daughter to Servius Sulpicius: whence Cassius speaks of Servius Sulpicius as his great-grandfather. Cassius was consul along with Quartinus in the time of Tiberius ; he possessed very great influence in the state down to the time when the Emperor expelled him. 52. He was banished to Sardinia, but he lived to be recalled by Vespasian. Nerva was succeeded by Proculus. There lived at the same time another Nerva, the son; there was also another Longinus, who belonged to the equestrian order; he afterwards attained to the office of preetor. Proculus however had the greater authority, in fact he had very great influence. The members of the two schools were called respectively Cassians and Proculians, the distinction between the schools having taken its start from Capito and Labeo. 53. Cassius was succeeded

1] have put nam posteaqguam for posteaque: tandem for tamen. Cf. M.:

reading very doubtful. * si inser. after se. Cf. M.

4

TTD, TE] On the Origin of Law 19

by Ceelius Sabinus, who had very great influence in the days of Vespasian ; Proculus by Pegasus, who was at the same period Prefect of the city; Czlius Sabinus by Priscus Javolenus ; Pegasus by Celsus; Celsus the father by Celsus the son and Priscus Neratius; both the last mentioned were consuls, Celsus indeed was twice consul; Javolenus Priscus was followed by Aburnius Valens and Tuscianus, also by Salvius Julianus.

ie

ON STATUTES, DECREES OF THE SENATE, AND LONG USAGE.

PAPINIANUS (Definitions 1) A statute (lex) is a command of general application, a resolution on the part of learned men, a restraint of offences, committed either voluntarily or in ignorance, a general covenant on the part of the state.

Marcianus (Institutes 1) The orator Demosthenes him- self gives this definition: ‘A law (vowos) is the following :— something which all men ought to obey for many reasons, and chiefly because every law is devised and given by God, but resolved on by intelligent men, a means of correcting offences both intentional and unintentional, a general agreement on the part of the community by which all those living therein ought to order their lives. We may add that Chrysippus the philosopher, a man who professed the highest wisdom of the Stoics, begins his book called epi vouwov (on law) as follows :—“Law is the king of all things, both divine and human, it ought to be the controller, ruler and com- mander of both the good and the bad, and thus to be a standard as to things just and unjust and” [director of] “beings political by nature, enjoining what ought to be done and forbidding what ought not to be done.”

POMPONIUS (on Sabinus 25) Laws ought to be laid down, as Theophrastus said, in respect of things which happen for the most part, not which happen against reasonable expectation.

CELSUS (Digest 5) Rules of law are not founded on possi- \ bilities which may chance to come to pass on some one occasion,

THE SAME (Digest 17) since law ought to be framed to meet cases which occur frequently and easily, rather than such as very seldom happen.

PAULUS (on Plautius 17) What occurs once or twice, as Theophrastus says, lawgivers pass by.

2-92

10

11

12

13

14

15

16

17

20 On Statutes, Decrees, Long Usage [BOOK I

MopEstinus (Rules 1) The use of a statute is as follows: to command, to prohibit, to permit, to punish.

ULPIANUS (on Sabinus 3) Rules of law are not laid down with respect to particular individuals, but for general application.

THE SAME (on the Edict 16) Nobody questions that the senate can make law.

JULIANUS (Digest 59) Neither statutes nor decrees of the senate can possibly be drawn in such terms as to comprehend every case which will ever arise ; it is enough if they embrace such as occur very often.

THE SAME (ibid. 90) Consequently, when a rule is laid down in the first instance, a more precise provision has to be made, either by interpretation or else by direct legislation on the part of the most excellent Emperor.

THE SAME (¢bid. 15) It is impossible for every point to be expressly comprehended in statutes or senatorial decrees ; still if, in any case that arises, the meaning of the enactment is clear, the presiding magistrate ought to extend the rule to ana- logous cases to the one expressed and lay down the law accordingly.

ULPIANUS (on the Edict of the Curule ddiles 1) For, as Pedius says, whenever this or that is provided by statute, there is a fair opening for any further rule which involves the same bene- ficial principle being supplied, either by interpreting the statute in that sense or, at any rate, by the ruling of the presiding magistrate (jurisdictio).

PauLus (on the Edict 54) But where a rule has obtained

force which is against legal principle, no analogous extension thereof should be made.

JULIANUS (Digest 27) In cases where anything has been laid down which is against legal principle, we cannot follow the rule of law [so laid down].

Pauuus (Special law) Special law (jus singulare) is law which contradicts the ordinary course of legal principle, but has been introduced for the sake of some particular beneficial operation in virtue of the authority of those who laid it down.

CELSUS (Digest 26) To know the statutes does not mean

to have got hold of the actual words, but to be acquainted with their sense and application.

18

19

20

21

22

23

24

25

26

27

28

29

TIT. 111] On Statutes, Decrees, Long Usage 21

THE SAME (ibid. 29) Statutes ought to be interpreted indulgently, so as to preserve the intention.

THE SAME (ibid. 33) Where a word in a statute is obscure, the meaning which ought rather to be adopted is the one which involves no absurdity, especially considering that it is possible by applying that principle to arrive at the intention of the statute.

JULIANUS (Digest 55) It is impossible to assign the prin- ciple of every rule of law laid down by our forefathers ;

NERATIUS (Parchments 6) consequently the reasons for the law laid down ought not to be inquired into; or else a great many rules already established will be upset.

ULPIANUS (on the Edict 35) Where a statute gives an exemption in respect of what is past, it maintains the prohibition for the future.

PAULUS (on Plautius 4) Where a particular interpretation has always been received, there ought to be no change made.

CELSUS (Digest 9) It is not like a lawyer to take hold of one particular portion of a statute and found a judgment or opinion upon it without examining the whole statute.

MODESTINUS (Responsa 8) It is inconsistent with all prin- ciples of law and with all rules of indulgent construction founded on justice that where any provision is happily introduced for the benefit of mankind, we should interpret it so harshly as to make it an authority for severe dealing to the prejudice of those for whose sake it was devised.

PAULUS (Questions 4) There is nothing new in earlier statutes being made use of in interpreting later ones.

TERTULLIANUS (Questions 1) It being the case that the older statutes are usually made use of for interpreting the newer, it ought always to be understood that it is, so to speak, of the essence of a statute that it should be applicable to any persons or things which may at any time be similar to those specified.

PAULUS (on the lex Julia et Papia 5) But in like manner the later statutes are relevant for interpreting the earlier, unless they contradict them, as may be shown in a number of cases.

THE SAME (07 the lex Cincia) Aman who does what a statute forbids transgresses the statute; a man who contravenes the intention of a statute, without disobeying the actual words, commits a fraud on it.

30

31

32

33

34

35

22 On Statutes, Decrees, Long Usage [BooK I

ULPIANUS (on the Edict 4) A fraud is committed on a statute when something is done which the statute desired should not be done, but did not actually forbid ; the difference between fraud on the law and transgression of it is the same as that between speech and intention.

THE SAME (on the lex Julia et Papia 13) The Emperor is not bound by statutes. The Empress no doubt is bound, at the same time the Emperor generally gives her the same exceptional rights as he enjoys himself.

JULIANUS (Digest 84) In any kinds of cases in which there are no written laws the rule which ought to be observed is that which has come to prevail by use and custom; and should there in any case be no such rule assignable, then what comes nearest and answers to one; if even this cannot be found, then we ought to go by the law in use in the city of Rome. 1. Immemorial custom is observed as a statute, not unreason- ably ; and this is what is called the law established by usage. Indeed, inasmuch as statutes themselves are binding for no other reason than because they are accepted by the judgment of the people, so anything whatever which the people show their approval of, even where there is no written rule, ought properly to be equally binding on all; what difference does it make whether the people declare their will by their votes, or by positive acts and conduct ? On this principle it is also admitted law, and very rightly so, that statutes are abrogated not only by the voice of one who moves to repeal them (suffragio legislatoris), but also by the fact of their falling out of use by common consent.

ULPIANUS (0n the office of Proconsul 1) It is the practice for custom of long standing to be observed for law and statute in all such matters as are not regulated by written rules.

THE SAME (ibid. 4) Where anyone is found to be confident as to the custom of a city or province, I am of opinion that a question which ought to be asked first of all is this: Has the custom ever been confirmed by a judicial sentence delivered after objections were heard ?

HERMOGENIANUS (Epitomes of law 1) We may add that rules of law which have the sanction of long-established custom and have been kept up for a great number of years, may be treated as being the subject of a tacit agreement on the part of the citizens in general, and are as fully maintained as those which exist in writing.

36

37

38

39

40

41

TIT. It] On Statutes, Decrees, Long Usage 23

PavuLus (on Sabinus 7) In fact especial weight is allowed to a rule which has met with such approval that it was not necessary to embody it in writing.

THE SAME (Questions 1) If a question is raised as to the interpretation of a statute, we must first inquire what was the rule of law which the state observed previously in cases of the same kind ; custom is the best interpreter of statutes.

CALLISTRATUS (Questions 1) In fact the reigning Emperor Severus laid down that where doubts occur owing to the wording of a statute, in such a case custom or the authority of constant decisions given to the same kind of effect ought to have the force of a statute.

CELSUS (Digest 23) When some rule has been introduced which was not arrived at by any legal principle, but was founded on a mistake and subsequently maintained by mere custom, it is not to be applied to similar cases.

Mopestinus (Rules 1) Accordingly all rules were either made through agreement or established by necessity or fixed by custom.

Uxpianus (Institutes 2) Now all law is concerned with tacquisition or preservation or restriction of right, as what is in question is either how a thing becomes a man’s property or how a man can preserve some thing or right which he already has, or how he can transfer it to some one else or cease to have it.

EN:

On IMPERIAL ENACTMENTS.

Uupianus (Institutes 1) What the Emperor has deéter- mined has the force of a statute ; seeing that, by a lex regia which was passed on the subject of his sovereignty, the people transfer to him and confer upon him the whole of their own sovereignty and power. 1. Accordingly whatever the Emperor has laid down by a letter with his ‘signature, or has decreed on judicial investiga- tion, or has pronounced out of court, or enacted by an edict, amounts beyond question to a statute. The above are cases of what are commonly called constitutions. 2. No doubt some of

1 Read consistit for constitit.

24 On Imperial Enactments [ BOOK I

these are of special application, and are not drawn into a pre- cedent ; wherever the Emperor shows indulgence to anyone on the ground of his merits, or imposes a penalty on anyone, or gives him relief in a way not practised theretofore, this applies only to the particular person.

ULPIANUS (Fidetcommissa 4) Where any new ordinance is made, there ought to be a very clear case of beneficial operation to allow of a departure from the law which has been held just for a long time past.

JAVOLENUS (Epistles 13) An indulgence vouchsafed by the Emperor, which proceeds in fact from his divine clemency, ought to receive the most extensive construction possible.

MODESTINUS (Hacuses 2) Later enactments have more force in law than those which precede them.

V. On STATUS.

GAIUS (Institutes 1) All law in force amongst us deals with either persons, or things, or actions.

HERMOGENIANUS (EHpitomes of law 1). Seeing then that all law has been established for the sake of mankind, we will discuss first personal status, and then the remaining subjects, following the arrangement of the Edictum perpetuum, and joining to the above the titles next in order and connected therewith, so far as the nature of the subject allows.

Gaius (Institutes 1) Now the main division of the law of persons is this, that all human beings are either free or slaves.

FLORENTINUS (Institutes 9) Liberty is the natural power of doing what anyone is disposed to do, save so far as a person is prevented by force or by law. 1. Slavery is a creation of the jus gentium, by which a man is subjected, contrary to nature, to ownership on the part of another. 2. Slaves are called servi because military commanders commonly sell their captives and so preserve them instead of killing them; 3. they are called mancipia, because they are taken by the hands of their enemies.

MARCIANUS (Institutes 1) Now all slaves have one and the same legal condition ; of free men some are ingenui, some are libertini. 1. Slaves become subjects of ownership either by the

6

7

TIT. V] On Status 25

civil law or by the jus gentiwm; by the civil law, a man over twenty years of age becomes a slave by allowing himself to be sold in order to have a share in the purchase-money ; by the jus gentiwm, people own as slaves those who are captured from their enemies or who are born from their female slaves. 2. Persons are imgenwi who are born of a free mother ; it is enough that the mother should be free at the moment when the child is born, though she should have been a slave at the time of conception. Even in the converse case, where she is free at conception, but a slave at the time of the birth, the law is that the child is born free; and it matters not whether the mother conceived in lawful wedlock or in random intercourse ; the mother’s ill fortune ought not to prejudice the unborn child. 3. Hence arose this question :—if a slavewoman is manumitted, being with child at the time, and after that is reduced to slavery again, or sent into banishment, and then gives birth to a child, is the child free or a slave? However, the view which has found deserved favour is that the child is born free, and that it is sufficient for the unborn child that the mother was free at some time or other during the period of pregnancy.

Gaus (Institutes 1) Inbertini are those who have been manumitted out of lawful slavery.

PavuLus (on the portions allowed to children of condemned persons). An unborn child is taken care of just as much as if it were in existence, in any case in which the child’s own advantage comes in question; though no one else can derive any benefit through the child before its birth.

PAPINIANUS (Questions 3) The Emperor Titus Antoninus laid down that the position of children is not prejudiced by the terms of a badly drawn instrument.

THE SAME (bid. 31) There are many points in our law in respect of which women are in a worse legal position than men.

ULPIANUS (on Sabinis 1) The question has been asked :— according to which sex are hermaphrodites to be treated? but I should say on the whole that they ought to be treated as having the sex which predominates in them.

PAULUS (Responsa 18) Paulus gave the opinion that where a boy was conceived in the lifetime of the father [of his mother], but without such father being aware of the connexion formed by his daughter, then, even though the boy should be born after the death of such grandfather, he is not to be held to be the lawful son of the man who begot him.

12

13

14

15

16

26 On Status [BOOK I

THE SAME (ibid. 19) It is now generally admitted on the authority of the very learned physician Hippocrates that a com- pletely formed child may be born in seven months (septimo mense) ; it may be therefore held that a boy who is born in lawful marriage in seven months is a lawful son.

HERMOGENIANUS (Epitomes of law 1) Where a slave is given up by his owner to the fortune of a trial at law in a capital case, though he should be acquitted, he does not become free.

PAULUS (Sentences 4) We cannot apply the word ‘chil- dren’ [liberi] to offspring which is born fashioned in some way which is contrary to the normal form of the human species ; for instance, where a woman is delivered of something monstrous or portentous. But any offspring which exceeds the natural number of limbs used by man may in a sense be said to be fully formed, and will therefore be reckoned among children.

TRYPHONINUS (Controversies 10) A testator ordered that Arescusa should be free if she bore three children. On her first delivery she had one child, on her second three children. The question was asked whether any of the children were born free, and, if any, which. [Answer] The condition on which freedom is to turn in this case is one which the woman has to fulfil ; but there can be no doubt that the child last born is born free. Nature does not allow that two children should issue from their mother’s womb at the same time by one movement, and thus that the order of birth should be uncertain, and it should not be clearly apparent which of two children is born a slave and which free. Accordingly, the condition being fulfilled at the moment when the [last] delivery begins, the result is that the child thereupon born is the child of a free woman ; just as if any other condition on which the freedom of the woman was to turn had been fulfilled at the moment when she was delivered; or suppose, for instance, she had been manu- mitted on condition that she gave ten thousand to the heir of the testator, or to Titius, and at the moment of her delivery she ful- filled the condition by an agent ; in that case it would have to be held that she was already a free woman when she gave birth to the child.

ULPIANUS (Controversies 6) The same would follow if Arescusa in the case mentioned first bore two, and then brought forth twins: the rule to lay down is that it cannot be said that both the twins are born free, but only that the one born last is free. The truth is it is rather a question of fact than of law.

17

18

19

20

21

22

23

24

25

TTT. .V | On Status 27

THE SAME (on the Edict 22) By an enactment of the Emperor Antoninus all those living in the, Roman world were made Roman citizens.

THE SAME (on Sabinus 27) The Emperor Hadrian laid down in a rescript to Publicius Marcellus that if a free woman were con- demned to the extreme penalty, being with child at the time, her child would be born free, and that the custom was to keep the woman until she was delivered of the child. We may add’ that if a woman, after conceiving in lawful wedlock, is forbidden fire and water, her child is born a Roman citizen and is under the potestas of its father.

CELsuS (Digest 29) When lawful marriage has taken place, the children follow the father; the child of random intercourse follows the mother.

ULPIANUS (on Sabinus 38) A man who has become a lunatic is held to retain the same status and rank that he had before, as well as any magistracy or authority, just as he retains ownership in his property.

MopESTINUS (Rules 7) If a free man sells himself for a slave, and is afterwards manumitted, he does not recover his original status which he renounced, but takes the condition of a libertinus.

THE SAME (Responsa 12) Herennius Modestinus laid down that if a slavewoman is delivered of a child at a time when, by the terms of the donation by which she was acquired, she ought to have been manumitted already, then, seeing that the Imperial enactment makes her free at once, her child is freeborn.

THE SAME (Pandects 1) The expression ‘conceived at ran- dom’ (vulgo conceptus) is applied to anyone who cannot point out who is his father, or who can, but his father is one who cannot be his father lawfully. Such a one is called ‘spurius’ from o7opa (generation).

ULPIANUS (on Sabinus 27) This is a rule of nature: who-

ever is born out of lawful wedlock follows his mother, unless some special statute provides otherwise.

THE SAME (on the lex Julia et Papia 1) We must take the term ‘ingenuus’ to include one who is judicially pronounced free- born, though he should really be a freedman ; what is judicially decided is deemed to be the fact.

1 Read e after sed. Hal.

26

1

28 On Status [BOOK I

JULIANUS (Digest 69) Unborn children are in almost every branch of the civil law regarded as already existing. They are allowed to take statutable inheritances ; and if a woman with child is taken prisoner by the enemy, and a child is born, it comes under the law of postlimintum, moreover it follows the condition of its father or its mother [as the case may be]; lastly, if a slavewoman who is with child is stolen, then, although she should be delivered when in the hands of a bona fide purchaser, the child will be regarded as stolen goods, and consequently ownership in it will not be acquired by wsus. Again, on the same principle, after the death of a patron, so long as a son of the deceased can possibly be born, a freedman is in the same legal position as one whose patron is living.

ULPIANUS (Opiions 5). When a man confesses that he is a freedman, his patron cannot give him freeborn status even by adopting him.

VI.

ON PERSONS swt juris AND alient juris.

Gatus (Institutes 1) We next have another division of the law of persons ; some persons are sui juris, and some are subject to the legal authority of others. Let us consider the case of persons who are subject to the authority of others ; when we see who such persons are, we shall thereby understand who are sui juris. Let us then take the case of those who are under the potestas of others. 1. Now slaves are under the potestas of their owners, and this potestas is part of the jus gentiwm, in fact we may observe among all nations alike that slave-owners have the power of life and death over their slaves, and whatever is acquired through the slave is acquired to the owner. 2. At the present day however no persons living under Roman rule are at liberty to deal cruelly with their slaves to an excessive extent or without some ground recognised in the statutes, as, by an enactment of the Divine Antoninus, a man who kills his own slave without due cause is to be just as much punished as one who kills the slave of another. Indeed even excessive harshness on the part of slave- owners is restrained by an enactment of the same Emperor.

TIT. VI] Persons sui juris and alieni juris 29

Uupianus (on the office of Proconsul 8) If an owner treat his slaves with cruelty or compel them to commit lewdness or submit to indecent outrage, the proper course for the Preeses to take may be plainly seen from the rescript of the Divine Pius to fElius Marcianus, the Proconsul of Beetica. The words of the rescript are as follows: “The power which owners have over their slaves ought not to be interfered with, and no human being ought to be debarred from exercising his legal rights ; still it is in the interest of owners themselves that slaves who make just complaint should not be refused aid against violence or starvation or any insufferable wrong. You must therefore listen to the complaint of those slaves of the household of Julius Sabinus who fled for refuge to the statue, and if you find that they have been treated with improper severity or subjected to infamous wrong, order them to be sold on terms which shall secure that they shall not be brought back into the hands of their present owner ; and should such owner endeavour to evade my enactment, let him understand that I will visit his behaviour very severely.” Moreover the Divine Hadrian relegated one Umbricia, a lady of good social position (matrona), for five years, for treating her female slaves with extreme cruelty on very trivial grounds.

Gatus (Institutes 1) Again, a man has under his potestas any children that he has begotten in lawful wedlock : this rule of law is peculiar to Roman citizens.

Uupranus (Institutes 1) A Roman citizen may be a paterfamilias or a filiusfamilias or a materfamilias or a filia- familias. A paterfamilias is a man who is in his own potestas, whether of mature age or not; a similar definition applies to a materfamilias; a filiusfamilias or jitiafamilias is under the potestas of some one else. A child who is born from the union of me and my wife is under my potestas; and one who is born from the union of my son and his wife, in other words, my grandson or granddaughter, is equally under my potestas, so is my great- grandson or great-granddaughter, and so on of more remote descendants.

THE SAME (on Sabinus 36) Grandsons through a son on the death of the grandfather regularly come under the poftestas of the son, that is, of their own father: similarly great-grandchildren and remoter descendants either come under the potestas’ of the son, if he is living and has remained in the family, or else under that of

1 Read potestatem for potestate. Hal.

30 On Persons sui juris [BOOK I

some ascendant who preceded them in the group subject to potestas. This rule applies not only where the children are such by nature but where they are adopted.

THE SAME (¢bid. 9) The definition of ‘son’ (filius) is ‘the male child of a man and his wife. If however we suppose a case where a husband was absent, let us say, for ten years, and, on coming home, found in his house a child one year old, we agree with the opinion of Julianus that the child is not [to be deemed in law] the son of the husband. Still, according to the same writer, a man is not to be listened to who, after constantly living with his wife, refuses to acknowledge her son, as not being his own. I should say however, and this is the opinion of Sczevola, that if it is shown that the husband passed an interval of time without knowledge of his wife, owing to bodily infirmity or any other reason, or a pater- Jamilias was for physical reasons unable to beget children, then a child born in the house, though the fact of birth was known to the neighbours, is not [to be deemed in law] the son of the husband.

THE SAME (¢bid. 25) There is no doubt that a grandson steps into the place of a son where his [ie. such grandson’s| father is visited with some punishment which causes him to lose his citizenship or become a penal slave.

THE SAME (¢bid. 26) If the father is a lunatic, his children remain none the less under their father’s potestas; the same rule applies to any paterfamilias who has children under his potestas. The right of potestas was established by custom, and a man cannot cease to have persons under his potestas except by the occurrence of the regular circumstances by which children become free, consequently there can be no admissible doubt that in the above case the children remain subject to potestas. Accordingly, he will have in his potestas not only those children whom he begot before his lunacy began, but also such, if there be any, as were conceived when he was sane, but were born after he became a lunatic. Indeed if his wife should conceive at a time when he is a lunatic, it is a fair question whether his child will not come under his potestas by birth; a lunatic, it is true, cannot contract a marriage, but he can remain a party to a marriage already contracted ; and this being the case, [it follows that] his son will be under his potestas. Similarly, if the wife is a lunatic, a child which she may have conceived previously will be born in [the husband’s] potestas ; and if it be conceived when she is a lunatic, but the husband is sane, there is no doubt that it will be born

10

11

ray

TIT, VI] and alieni juris 31

under potestas, since the marriage remains good. We may add that if both husband and wife are lunatics, and, that being the case, the wife conceives, the child will be born under the potestas of its father, some remnant of intention being assumed to remain in the parties in spite of their lunacy ; since the marriage holds good where one party is a lunatic, it will do so equally where both are in that condition. 1. So true is it that a father who is a lunatic retains the right of potestas, that in fact the benefit of anything which the son gains is acquired by the father.

POMPONIUS (on Quintus Mucius 16) A filiusfamilias is in matters of public law on the same footing as a paterfamilias ; so that he is able, for example, to discharge the office of magistrate, or to be appointed a guardian.

ULPIANUS (on the lex Julia et Papia 4) If the Court should declare that a child is to be reared or maintained, it must be held that inquiry is open on the question of fact whether the child is or is not a lawful son; a decision as to maintenance is not allowed to prejudge the above question of fact.

MoDESTINUS (Pandects 1) Natural or emancipated children cannot be brought under patria potestas against their will.

MLL:

CONCERNING ADOPTIONS AND EMANCIPATIONS AND OTHER METHODS BY WHICH potestas IS DISSOLVED.

MopeEstinus (Rules 2) The position of filiusfamilias is acquired not only by nature but by adoption. 1. The word adoption is a general term, and embraces two kinds of cases, of which one is again called adoption, the other arrogation. Adoption is of a filiusfamilias, arrogation of one who is swe juris.

Gatus (Institutes 1) Now adoption, in the comprehensive sense of the word, is performed in two ways, that is, either by the authority of the Emperor or by the order of a magistrate. By the authority of the Emperor a man adopts such as are sud juris ; which kind of adoption is called arrogation, because the person adopted is asked, that is, interrogated, whether he desires that the person whom he is intending to adopt should become his lawful son, and the person who is being adopted is asked whether he is willing that this should take place. A man adopts by

10

32 Adoptions and Emancipations [BOOK I

order of a magistrate persons who are under the potestas of a paterfanilias, whether they are issue in the first generation, as sons or daughters, or in a lower generation, as grandsons or grand- daughters, great-grandsons or great-granddaughters. 1. One rule applies equally to both kinds of adoption, viz. that men who are incapable of begetting children, such as those who are impotent, are able to adopt. 2. But the following rule applies only to the kind of adoption which requires application to the Emperor, viz. that if a man who has children under his potestas allows himself to be arrogated, not only is he brought under the potestas of the arrogator himself, but his children too come under the potestas of the same person, so as to be, as it were, that person’s grand- children.

PAULUS (on Sabinus 4) Where a consul or the governor of a province is a jiliusfamilias, it is recognised law that he can be emancipated or given in adoption in his own court.

MopEstTinus (Rules 2) It is held by Neratius that any magistrate who can take legis actiones can emancipate his children or give them in adoption in his own court.

CEeLsuS (Digest 28) In case of adoption it is only persons who are sud juris whose consent is asked ; but where children are given in adoption by their father, the will of both parties has to be considered, [which may be made known] by express consent or by the fact of no objection being made.

PauLus (on the Edict 35) When anyone is adopted for grandson as through a particular son, the son’s own consent is required ; this is said by Julianus himself.

CELSUS (Digest 39) There is no need, in case of an adoption, for concurrence on the part of those with whom the person to be adopted will come into agnatic connexion.

MopEsSTINUS (Rules 2) The rule once in force that in a case of arrogation the concurrence of a curator should not be inter- posed has been very properly altered by the Divine Claudius.

ULPIANUS (on Sabinus 1) Even a blind man cap adopt or be adopted.

PAauLus (on Sabinus 2) If a man who has a son in ‘his potestas should, with the consent of that son, adopt anyone into the position of grandson through that son, this will not make the party adopted swus heres to his [adoptive] grandfather, seeing that if the grandfather dies, he falls into the potestas of the person who is, so to speak, his father.

11

12

13

TIT. VII Adoptions and Emancipations 33

THE SAME (tbid. 4) If a man who has a son should adopt some one into the position of grandson, as though he were the son of that son, but the son himself has not concurred in the adoption ; then, on the death of the [adoptive] grandfather, such grandson will not be under the potestas of the son.

ULPIANUS (on Sabinus 14) When a man has been set free from patria potestas, he cannot afterwards come again under potestas in any creditable way, save by adoption.

PAPINIANUS (Questions 36) In almost every legal aspect of the case, when the potestas of an adoptive father is terminated, there is no trace left of the preceding state of things; in short the very dignity of father acquired by adoption is laid aside when the relation is ended.

POMPONIUS (on Sabinus 5) Even a grandson through a[n adopted] son, though conceived and born in the household of the father of such adopted son* loses his whole legal position on emancipation.

ULPIANUS (on Sabinus 26) When a_ paterfamilias is adopted, everything which belongs to him and all his rights of acquisition pass tacitly to the person who adopts him ; in addition to this, any children who are in his potestas go with him, moreover such children as subsequently return under the law of poséliminiwm, or were conceived but unborn at the moment of arrogation, will equally come under the potestas of the party arrogating. 1. If a man has two sons and a grandson through one of the two, and he wishes to adopt his grandson so as to put him on the footing of son of the other son, he can do so by first emancipating him and then readopting him as son to such other son. In fact he does this last just as if he were any stranger, and not as grandfather, and, on whatever principle he could adopt a person whom he treated as the son of a stranger, on the same principle he can adopt one whom he treats as the son of his own other son. 2. In a case of arrogation one point to inquire into is whether the party arrogating chances to be under sixty years of age, because, if he is, he ought rather to think of begetting children; unless it so happen that there is some disease or infirmity in the case, or there is some other good ground for an arrogation, as, for example, where he wishes to adopt a person with whom he is connected. 3. Moreover a man ought not to arrogate more than one person without lawful cause,

1 Read adoptati for adoptatum. Cf. M. M. J. 3

16

17

34 Adoptions and Emancipations [BOOK

nor some one else’s freedman, nor a person who is older than himself ;

JAVOLENUS (extracts from Cassius 6) as the adoptive re- lation is only allowed between those persons between whom the natural relation might by possibility have existed.

ULPIANUS (on Sabinus 26) A man is not allowed to arrogate a person to whom he has been an acting guardian or curator, so long as the person whom it is proposed to arrogate is under twenty-five, because otherwise his object in arrogating him might be to avoid submitting his accounts. Moreover there ought to be an inquiry as to whether or not the case is one in which the arrogation is desired on some dishonourable ground. 1. ‘Only those children under the age of puberty are allowed to be arrogated in whose case the reason for the arrogation is either blood-relationship or some perfectly genuine affection, in all other cases leave must be refused, lest it should be in the power of the guardians to put an end to the guardianship, and at the same time to bring to nothing a testamentary substitution which may have been made by the father of the ward. 2. Accordingly an estimate must be made first of the ward’s means and also of the means of the person who proposes to adopt him, in order to ascertain by comparison of the two whether the adoption can be considered beneficial to the ward; next an inquiry must be made into the manner of life of the man who wishes to make the ward a member of his family ; thirdly, as to his age, so as to ascertain whether it would not be better for him to think about begetting children for himself, rather than bringing some one under his potestas who is taken from another man’s family. 3. It should further be con- sidered whether, when a man has one or more children of his own, he ought to be allowed to acquire another by adoption; as the result might be that either those children whom he begot in lawful wedlock would have a worse prospect of the kind which all children acquire who are dutiful to their parents, or the ward himself so adopted would gain less by the adoption than he ought under the circumstances to get. 4. Sometimes a poorer person will even be allowed to adopt a richer, if he is clearly a man of frugal habits, and his motives are honourable and well-known to be such. 5. However it is the practice in such cases for security to be given.

1 The passage seems corrupt: the sense must be as above. Read his for corum, ceteris for ceterorum, and delete Ais where it occurs.

18

TIT. Vit] Adoptions and Emancipations 35

MARCELLUS (Digest 26) In fact, when a man wishes to arrogate a ward, if he establishes a good case for it in other respects, his application should only be granted on the terms of his giving an undertaking to a government slave that he will make over any property of the ward’s that comes to his hands to those persons to whom such property would have gone if the ward so arrogated had remained as he was.

ULPIANUS (on Sabinus 26) It is beyond doubt that, in the form of the undertaking which the arrogator has to give, where there occur the words “those who have a right thereto,” this reference includes the case of any manumissions which are con- tained in the secondary testament, and most especially that of a slave being made substitutional heir, also the case of legatees. 1. If the arrogator should fail to give the security in question, an utilis actio is allowed against him.

MARCELLUS (Digest 26) This undertaking comes into force where the ward dies under age. It may be observed that the law speaks of a male ward, but the same practice has to be observed in the case of a girl ;

GaAIus (Rules) as females may be arrogated by imperial rescript as well as males.

ULPIANUS (on Sabinus 26) If an arrogator dies leaving an adopted son who is under age, and soon after that this latter himself dies, will the heirs of the arrogator be liable to the action ? The proper answer is that the heirs will be equally bound to hand over the property of the adopted son, and the quarter in addition. 1. Here the question has been asked whether the arrogator can appoint a substitutional heir to the adopted son under age ; but I am of opinion that such a substitution is not allowed, unless it be simply in respect of the quarter which he gets of the arrogator’s property, and the substitution must turn on an earlier event than that of the adopted son reaching the age of puberty. But if he should leave the property in question to the adopted son upon trust to hand it over at some date chosen at large, such a trust ought not to be admitted, because the quarter does not come to the son by an exercise of the testator’s will, but by the Emperor’s provision. 2. All the above applies equally whether a man arrogates a boy under age as a son or as a grandson.

3—2

23

24

25

26

27

28

29

36 Adoptions and Emancipations [BOOK I

PAULUS (on the Edict 35) When a person is given in adoption, he becomes cognate to every one to whom he becomes agnate, and he does not become cognate to any one to whom he does not become agnate; adoption does not create the tie of blood, but the tie of agnation. Hence, if I adopt a son, my wife is not in the place of mother to him; he does not become agnate to her, consequently she does not become cognate to him; again, my mother is not in the place of grandmother to him, as he does not become agnate to those who are outside my family ; but any male whom I adopt [as a son] does become brother to my daughter, as my daughter is in my family: and of course the two are not allowed to marry.

ULPIANUS (Controversies 1) No one can be arrogated in his absence or without his own consent.

THE SAME (Opinions 5) On the death of a daughter who has been living as an independent woman as if in consequence of a lawful emancipation, and who before her decease appointed heirs by testament, the father is not allowed to take proceedings calling in question the validity of his own act, on the alleged ground that the emancipation was not made according to law nor in the presence of witnesses. 1. A man cannot adopt or arrogate any one without being present, nor can he execute the required formalities by an agent.

JULIANUS (Digest 70) A person whom my emancipated son adopts will not thereby become my grandson.

THE SAME (ibid. 85) According to the civil law the son of an adopted son acquires the same position as if he were himself adopted.

Gatus (Institutes 1) Any one who has in his potestas a son and a grandson through that son is at full liberty to dismiss the son from his potestas and retain the grandson ; or, conversely, to retain the son in his potestas, and emancipate the grandson ; or to make both sa juris: similar rules must be held to apply in the case of a great-grandson.

CALLISTRATUS (Institutes 2) Where a natural father is unable to speak, but is able to make plain by some other method than speech that he desires to give his son in adoption; the adoption is as fully upheld as if it had been effected with proper legal formality.

30

31

32

33

34

35

36

37

38

39

TIT. VIr| Adoptions and Emancipations 37

Pauuus (Rules 1) Even a man who has no wife can adopt a son. MARCIANUS (Rules 5) No son who is in the potestas of a

father, whether by nature or adoption, can in any way compel his father to let him be free from potestas.

PAPINIANUS (Questions 31) In some cases, however, where a boy under age has been adopted, he has a right to be heard, if, on arriving at full age, he desires to be emancipated, and the judge will have to decide after hearing the case. (1. The Emperor Titus Antoninus laid down that where a man is guardian to his stepson he must be allowed to adopt him.)

MARCIANUS (Rules 5) And if, on arriving at the age of puberty, the boy can show that it was not to his advantage that he should be brought under the party’s poéestas, the just course is that he should be emancipated by his adoptive father, and so recover his original legal position.

PAULUS (Questions 11) The following question has been raised. If a son is given you in adoption on the understanding that after, say, three years you will give the same son in adoption to me, is there any right of action against you? As to this, Labeo holds there is no right of action; as it is not in accordance with our customs that a man should have a son for a prescribed time.

THE SAME (Responsa 1) The operation of an adoption is not to lower a person’s station, but to raise it. Consequently, even where a senator is adopted by a plebeian, he remains a senator ; in the same way a man will remain the son of a senator.

THE SAME (ibid. 18) It is recognised that a son can be emancipated by his father in any place whatever, so as thereupon to be freed from patria potestas. 1. The law is that the act of manumitting or of giving in adoption can be executed before a proconsul, even in a province which has not been allotted to the proconsul in question.

THE SAME (Sentences 2) A man can adopt a person as grandson even when he has no son. 1. When a man has once adopted any one, then, if he should emancipate him or give him in adoption, he cannot adopt him again.

MARCELLUS (Digest 26) An adoption not made in proper legal form can be made good by the Emperor ;

_ ULPIANus (07 the office of Consul 3) this appears by the following rescript of the Divine Marcus to Eutychianus :—‘ The

40

41

42

43

44

45

38 Adoptions and Emancipations [BOOK I

judges will consider whether your application ought to be granted after hearing the parties who have objections to make, that is to say, those who would suffer if the adoption were confirmed.’

MovEstTiInus (Differences 1) On the arrogation of a pater- Familias the children who were under his potestas become grand- children to the arrogator, and fall under his pofestas along with their own father. The same result does not take place in an adoption [in the narrower sense of the word]; the children of one who is [so] adopted remain under the potestas of their natural grandfather. 1. Both where a man adopts, and also where he arrogates, he ought to be older than the person whom he makes his son by adoption or arrogation, and that by the period of full puberty ; in other words, he ought to be in advance of the age of the other by eighteen years. 2. One who is impotent can by arrogation acquire for himself a swws heres ; his physical defect is no obstacle.

THE SAME (Rules 2) If a man who has in his potestas a grandson through a son emancipates his son, and after that adopts him again, on his death the grandson does not come under the potestas of his father. Similarly the grandson does not come under the potestas of his father [on his grandfather’s death], where his grandfather keeps him under potestas on giving his son in adoption and subsequently readopts the son.

THE SAME (Pandects 1) Even an infant can be given in adoption.

POMPONIUS (on Quintus Mucius 20) Persons may be adopted not only for sons but even for grandsons, so as to cause whoever is adopted to be deemed in law a grandson through a son, and not even necessarily any particular son.

PROCULUS (Epistles 8) If a man who has a grandson through a son adopts some other person into the position of grandson [simply], I should say that on the death of the grandfather there will be no legal tie of consanguinity between the grandsons. But if he adopts him in such form as to make him as much his grand- son by law and statute as if he had been born the son, say, of Lucius the adopting party’s son and of Lucius’s lawful wife, I should hold the contrary’.

PAULUS (0n the lex Julia et Papia 3) The legal obligations of a person who is given in adoption pass to the adoptive father.

1 Read, for wt etiam...quasi, uti tam jure lege nepos suus esset quam si. Cf, M. and Aul. Gell. 5. 19. 9.

46

TIT. VII | Adoptions and EHmancipations 39

Uxpranus (on the lex Julia et Papia 4). A son begotten by me when I was in a condition of slavery may be brought under my potestas by the favour of the Emperor: but there is no doubt that such a son will still be of libertine status.

VII.

ON THE DIVISION OF THINGS AND THEIR RESPECTIVE NATURES.

Galus (Institutes 2) The main division of things ranges them under two heads ; some things being subjects of divine law, some of human. Subjects of divine law, for instance, are things sacred and religious. Things under a sanction (ses sanctc), more- over, as for example, walls and gates, are to a certain extent subjects of divine law. A thing which is of divine law is no man’s property ; but a thing which is of human law is for the most part the property of some one or other; still it is possible that it should be no man’s property, we know that things comprised in an inheritance, until some one becomes heir, are no man’s property. Such things as are subjects of human law are either public or private. Things that are public’are held to be no man’s property, they are in fact regarded as belonging to the whole community ; things are private that are the property of individuals. 1. Again, some things are corporeal, some incorporeal. Corporeal are such as can be handled, for instance, land, slaves, raiment, gold, silver, and innumerable things besides ; incorporeal are those that cannot be handled, of which nature are such as consist of a right, for instance, an inheritance, a usufruct, an obligational claim, however acquired. It is beside the purpose to say that there are corporeal things contained in an inheritance; as it is equally true that produce which is taken from land [in exercise of a usufruct] is corporeal, and anything owing to a man in pursuance of an obli- gation is for the most part corporeal, such as land, or a slave, or money ; still the bare right of succession to an inheritance and the right of usufruct and the right involved in an obligational claim are all incorporeal. To the same class also belong rights attached to urban and rustic tenements, or, as they are also called, servitudes.

MARCIANUS (Institutes 3) Some things are by natural

law common to all, some belong to a community (wniversitas), some to nobody, most things belong to individuals; and they

40 On the Division of Things [BOOK I

are acquired by various titles in the respective cases. 1. To begin with, by natural law, the following are common to all: air, flowing water, the sea, and consequently the seashore.

FLORENTINUS (Institutes 6) Moreover pebbles, gems and generally things which persons find on the seashore at once become theirs by natural law.

MARCIANUS (Institutes 3) Accordingly no one is debarred from entering on the seashore for the purpose of fishing, so long as there is no meddling with houses buildings or monuments ; these not being, like the sea itself, subjects of the jus gentiwm. The above was laid down by the Divine Pius in a rescript addressed to the fishermen at Formize and Capena. 1. But rivers are almost all public, and so are harbours.

Gaius (Everyday matters or Golden things 2) The use of river banks is public by the jus gentiwm, just as much as that of the river itself. Consequently anybody is at liberty to bring a boat to land on the bank, to fasten ropes to trees growing thereon, to dry nets and [for that purpose] to draw them up from the sea or to place cargo on the banks, just as he is free to navigate the stream itself. Still the ownership of the banks is vested in the persons to whose land they are joined ; and consequently the trees that grow on the banks belong to the same persons. 1. Persons who fish in the sea are at liberty to erect huts on the shore in which to take shelter ;

MARCIANUS (Institutes 3) so far does this go that those who build on the shore become in fact owners of the soil, so long, that is, as the building stands; no doubt, if the building falls down, then the site will, by something like the law of postliminium, revert to its former legal character, and, if some one else builds on the spot, the land becomes his. 1. Of things which belong to a collective body and not to individuals we may take for examples theatres, racecourses and the like in cities, or any other property which in any case belongs to the city at large. Consequently a slave belonging to the city at large is not regarded as one in whom the individual citizens have their respective shares, but as the property of the whole body (wniversitas) ; hence the Divine Brothers laid down by rescript that a municipal slave can be examined by torture either for or against a citizen. For this reason again it is that the freedman of a city is not obliged to ask permission under the Edict, if he summonses one of the citizens. 2. Sacred things, religious things and things under a sanction are no man’s property. 3. Sacred

TIT. VIII | On the Division of Things 41

things are those which have been consecrated by an act of the state, and not privately; consequently if any one affects to make something sacred on his own behalf privately, the thing does not become sacred but remains profane. If a temple is once made sacred, the site remains sacred even if the building should be pulled down. 4. But any one can make a place religious at his own will and pleasure, by burying a dead body on his own ground : and where several have a right to one burial ground, any one of them can bury there, even against the will of the others. It is also open to any one to bury on another person’s ground with the leave of the owner ; and even where the owner only ratifies the act after the burial has taken place, the spot becomes religious. 5. Even an empty tomb is held on the whole to be a religious place, as is testified by Virgil.

ULPIANUS (on the Edict 25) However the Divine Brothers issued a rescript to the opposite effect.

MARCIANUS (Ratles 4) The word ‘sanctus’ (under a sanction) is used of whatever is defended and guarded against wrong or damage at the hands of men. 1. Sanctus is derived from sagmina; sagmina being certain herbs usually carried by legates of the Roman people to secure them against outrage, just as the legates of the Greeks carry what are called xknpv«ia. 2. Again, in a municipal town, the walls are under a sanction, according to what Cassius tells us was the opinion expressed by Sabinus, which he declares to be correct, adding that no one ought to be permitted to cast anything at or upon them.

ULPIANus (on the Edict 68) Sacred places are such as are dedicated by the state (publice), whether in a city or in the country. 1. It should be understood that a public site can only be made ‘sacred’ where the Emperor dedicates it or gives permission to. dedicate it. 2. A point that should be noted is that a sacred place is not the same thing as a sacrarium. A sacred place is a consecrated place, a sacrartwm is a place in which sacred objects are kept, and it may exist in a private building; moreover, when persons wish to divest such a place of its religious character, they commonly have the sacred objects removed by evocation. 3. The word ‘sanctus’ is used in a special sense to denote things which are neither sacred nor profane, but are protected by some kind of ‘sanction’; thus the term sanctus is applied to statutes, because they derive their force from a particular sanction. Whatever is maintained by some particular sanction is ‘sanctum,’ even though

10

Ay

42 On the Division of Things [BOOK I

it be not consecrated to God, and sometimes it is added in the terms of the sanction itself that whosoever offends in respect of the object in question shall be capitally punished. 4. The walls of a municipal town are not even allowed to be repaired without the authority of the Emperor or the Preeses, nor may anything be united to them or laid upon them, save on the same condition. 5. A sacred thing cannot have a money value put upon it.

PoMPONIUS (Hatracts from Plautius 6) According to Aristo, just as anything built into the sea becomes private property, so anything over which the sea encroaches becomes public.

POMPONIUS (Various passages 2) If any one trespasses on the walls, he suffers capital punishment ; for example, if he climbs over them by the use of ladders, or by any other means: citizens of Rome are only allowed to leave the city by passing through the gates ; taking any other way is the act of an enemy, and of evil omen. In fact Remus, the brother of Romulus, was put to death, so tradition says, because he desired to climb over the wall.

TX: CONCERNING SENATORS.

ULPIANUS (on the Edict 62) All agree that a man of consular rank always takes precedence of a woman of consular rank. But it is a point to consider whether a man of preefectorian rank takes precedence of a woman of consular rank. I should hold that he does, because the male sex deserves the greater honour. 1. By a woman of consular rank is meant the wife of a man of consular rank ; or, as Saturninus adds, even the mother; but for this last there is no express authority and it has never been admitted in practice.

MARCELLUS (Digest 3) Cassius Longinus holds that when a man has been removed from the senate for disgraceful conduct, and has not been reinstated, he ought not to be allowed to sit as judge, nor to appear as a witness; since this is against the lex Julia on extortion.

MODESTINUS (ules 6) A senator who is removed from the senate does not thereby suffer capitis diminutio, indeed the Divine Severus and Antoninus allowed him to live in Rome.

TVR TX} Concerning Senators 43

POMPONIUS (Various passages 12) When a man is un- worthy of the lower rank he is still more unworthy of the higher.

ULPIANUS (on the lex Julia et Papia 1) By the expression ‘son of a senator’ we must understand not only one who is son in the course of nature, but an adopted son as well ; nor will it make any difference who it is that he was adopted from, nor what was the manner of his adoption. Nor is it material whether the party adopting was already of senatorial rank at the time of the adoption or only attained to that rank afterwards.

Pavuuus (on the lex Julia et Papia 2) The expression ‘son of a senator’ applies to one whom the senator has adopted, but only so long as he remains in the senator’s family ; if he should be emancipated, then by the emancipation he loses the name of son. 1. If the son of a senator is given in adoption by his father to a man of inferior rank, he is still regarded as being the son of a senator ; the rank of senator is not lost by an adoption proceeding from an inferior rank, any more than a similar adoption would make the party adopted cease to be of consular rank.

Uupranus (on the lex Julia et Papia 1) If a man is emancipated by his father who is a senator, the law is that he should be treated as if he were the son of a senator. 1. Again, Labeo lays down that even one who is born after the death of his father who was a senator is on the footing of son of a senator. But where a man was conceived and born (sic) after his father was removed from the senate, then, in the opinion of Proculus and Pegasus, he is not on the footing of son of a senator; and in this they are quite right ;—a man cannot properly be called the son of a senator where his father was removed from the senate before his birth. No doubt if he was already conceived, before his father’s removal from the senate, but born after his father’s loss of rank, the better opinion is that he must be regarded as the son of a senator ; as most authorities hold that it is the time of conception that has to be considered. 2. If a man’s father and grandfather were both senators, he is regarded as on the footing both of son of a senator and grandson of a senator. But if the father lost his rank before the person in question was conceived, it may be asked whether he ought not to be regarded as on the footing of grandson of a senator in spite of the fact that he is not regarded as son; and the better opinion is that he ought, so that his grandfather’s rank

10

11

12

44 Concerning Senators [BOOK I

is to his advantage rather than his father’s loss of rank to his disadvantage.

THE SAME (Fidetcommissa 6) Women who are married to men of honourable’ rank (clarissimz) are included under the term honourable. Daughters of senators are not comprised under the expression honourable women [after marriage], except where they have found honourable husbands ; husbands give honourable rank to their wives, but parents only do so to their daughters unless and until the latter marry plebeians; accordingly a [married] woman is “honourable” only when she is the wife of a senator, or of any honourable man, or, if she has come to be separated from such a husband, has not married any one else of lower rank.

PAPINIANUS (Responsa 4) Where the daughter of a senator affects to marry a freedman, loss of rank on the part of her father does not make her a lawful wife ; as [,conversely,] the rank which a man has once communicated to his children will not be taken away by the fact of the father losing his status by removal from the senate.

ULPIANUS (on the Edict 34) By the expression children of senators we must understand not merely the sons of senators, but all those persons who are shown to be the children of senators or of their sons, whether the senators’ sons whose children they are shown to be were sons by nature or by adoption. But where a man was the child of the daughter of a senator, what we have to look at is the rank of his father.

PAULUS (on the Edict 41) Though senators are said to have their domicile in the city, still they are also regarded as having their domicile in the place of their birth ; their rank is held rather

to give an additional domicile than to give a new one in place of the old.

ULPIANUS (07 registration 2) Women once married to men of consular rank may procure leave from the Emperor, though it is very sparingly given, enabling them, if they contract subsequent marriages with men of lower rank, to retain their consular rank all the while. I know, for instance, that Antoninus Augustus accorded this privilege to his cousin Julia Mammea. 1. The term senators we must understand to imply persons descended from patricians and consuls or any illustrious [¢//ustres] men; as in fact such alone have the right to speak in the senate.

1 See Gibbon ec. 17.

mT: X| On the office of Consul 45

xO ON THE OFFICE OF CONSUL.

ULPIANUS (on the office of Consul 2) It is the duty of the consul to appoint a board [consiliwm] for persons who propose to execute a manumission. 1. Individual consuls can manumit by themselves ; but no one who enters the names with one consul can -manumit before another; every manumission is confined to the court of one consul. It is true that it has been laid down by the senate that if one of two colleagues is for any reason unable to manumit, because he is hindered by illness or any other sufficient cause, the other can take the manumission. 2. There is no doubt that a consul can manumit his own slaves in his own court. Should it however happen that the consul is under twenty years of age, he cannot manumit in his own court, as he is the very person on whom the decree of the senate casts the duty of examining the ground for requiring a board, but he can manumit in the court of his colleague, if the ground is held to be established.

XI. ON THE OFFICE OF Preefectus Preetorio.

AURELIUS ARCADIUS CHARISIUS master of the libelli (on the office of Preefectus Preetorio) It is requisite to state briefly what was the history of the original creation of the office of Prefect to the Preetorium. We are informed by certain writers that prefects to the Preetorium were anciently established in the place of the Magister Equitwm ; for whereas, in the days of our forefathers, dictators were from time to time entrusted for a definite period with supreme power, and used thereupon to choose Magistri Equitum who were joined to them as partners in their duties in connexion with military matters’, and occupied the next place of authority under them, it came to pass that, when power in the state was transferred to permanent Emperors, prefects to the Preetorium were appointed by the head of the state on the model of the Magistri Equitum. These officers were entrusted with ampler powers with a view to the improvement of public discipline.

1 Read ad curas for cure ad. Of. M.

46 On the office of Prefectus Pretorio [BooK I

1. Such being the origin of the authority of the prefects, it sub- sequently obtained so great an extension that no appeal can be made from them. In fact, though it once was a question whether an appeal from these prefects was admissible, which in strict law it was, and cases were on record of appeals being made, still, by an imperial order which was subsequently rehearsed in public, the right of appeal was taken away, the Emperor being of opinion that men who were called to the exalted station conferred by this office in consequence of their special assiduity and upon proof of their being men of honesty and character, would, considering the wisdom and enlightenment which went with their rank, pronounce similar decisions to those which he would have given himself. 2. The preetorian prefects enjoyed another privilege as well; minors were not allowed to get a restitutio in integrum after one of their judgments in the court of any magistrate who was not a preetorian prefect himself.

XII.

ON THE OFFICE OF Preefectus Urbi.

ULPIANUS (on the office of Prefect of the City) As declared in an epistle of the Divine Severus addressed to Fabius Cilo, prefect of the city, the jurisdiction claimed by that magistrate embraces all criminal offences of every kind, not only such as are committed within the city, but also [some] which are committed’ in Italy, though without the city. 1. Where slaves flee to statues for refuge, also where they have been bought with their own money with a view to manumission, the prefect will hear their com- plaints against their owners. 2. He will also entertain applications by impecunious patrons who complain of their freedmen, especially where they allege that they are in ill health and desire that their freedmen should support them. 3. He has the power of relegation and deportation into any island which the Emperor may prescribe. 4, The opening words of the epistle referred to are these:—‘as we have entrusted our city to your care’: consequently any offence that is committed within the city must be held to be a matter for the prefect. Besides this, any offence committed within the

1 Intra Italiam must be incorrect or a clumsy interpolation ; v. subs. 4: to help the sense I have inserted ‘some’.

TIT, XI] On the office of Prefectus Urbi 47

hundredth milestone is a matter for the prefect; if it is beyond the milestone, it lies outside his jurisdiction. 5. If a man’s complaint is that his slave has committed adultery with his wife, the case may be brought before the prefect. 6. He may also be applied to for an interdict quod wt aut clam or unde vi}. 7. Moreover guardians and curators are brought before the Prefect of the City where they act corruptly in respect of their guardianships or curatorships, and the case requires such severe treatment that it is not adequately met by the infamy consequent on de suspecto proceedings ; for instance, where it can be shown that a man got into a guardianship by bribery, or was himself bribed into taking measures to prevent some ward having a proper guardian appointed, or that, when called upon to disclose the amount of the property, he deliberately understated it, or that he disposed of the ward’s goods with plainly fraudulent intent. 8. With regard to the above statement, that the prefect will hear complaints by slaves against their owners, we must not understand this to mean that slaves may bring criminal charges against their owners, (this a slave is by no means to be allowed to do, except in certain recognised cases,) what is supposed is that a slave makes a respectful representation ; slaves may, for example, bring before the prefect cases of cruelty or harsh treatment or insufficient sustenance which they have had to suffer, or indecent assaults to which they are or have been compelled to submit. The Divine Severus imposed this further duty on the Prefect of the City that he should protect slaves from compulsory prostitution. 9. Furthermore, the prefect will be bound to take measures to secure that moneychangers conduct themselves honestly in all — branches of their business, and forbear unlawful practices. 10. If — a patron alleges that he is slighted by his freedman, or complains that his freedman is insolent to him, or that he or? his children or his wife has had to put up with abusive language from him, or makes any similar charge; the proper course is to apply to the Prefect of the City, who will punish the freedman according to the misbehaviour complained of. The usual way of dealing with the offence is to warn the man or to order him to be beaten, or to take still stronger measures in the way of punishment; as a matter of fact, freedmen are liable to punishment in a great many cases. There is no doubt that if the patron can show that his freedman brought a criminal charge against him, or conspired against him

1 Read aut unde vi adiri for unde vi audire. Cf. M. ? Read -ve for -que. Cf. M.

48 On the office of Prefectus Urbi [BOOK I

with his personal enemies, he ought even to be condemned to _ labour in the mines. 11. The duties attached to the prefect’s office comprise the supervision of the whole of the meat trade, so as to enable him to secure that meat shall be supplied at a reasonable price, accordingly the pigmarket is under this officer’s care ; in fact the business of a similar supply of cattle and herds generally is a matter for him to superintend. 12. Further it is held to be part of the duty of the prefect to see that the public are unmolested, and to maintain order at public exhibitions ; indeed he ought to have police (melites stationariz) stationed at various points in order to secure that the public shall not be disturbed and to keep himself informed of all that goes on. 13. The prefect may require any one to keep away from the city, or from any one of the regular districts, and forbid him to carry on any business or profession, or the vocation of pleader or practitioner, either for a time or altogether; he may even exclude a man from public exhibitions, and, if he banishes any one from Italy, he can remove him from his own province as well. 14. The Divine Severus laid down in a rescript that persons who are alleged to have formed an illicit association should be prosecuted in the court of the prefect.

PAULUS (on the office of the Prefect of the City) Application may be made to this officer, in virtue of an epistle of the Divine Hadrian, either by or against bankers, and generally in pecuniary cases.

ULPIANUS (on the Edict 2) When the prefect goes beyond the bounds of the city, his authority is at an end, but he can appoint a judex outside the bounds.

XIII.

ON THE OFFICE OF QUASTOR.

ULPIANUS (on the office of Questor) The original occasion of creating queestors is extremely ancient, the office was almost the earliest magistracy instituted. In fact Gracchanus Junius in his seventh book entitled ‘on Authorities’ (de potestatibus), tells us that Romulus and Numa Pompilius themselves had each two queestors whom theyappointed to the office by taking the vote of the people, and not by their own selection. And however doubtful it may be whether there was any queestor in the reign of Romulus or Numa, still it

ul

2

TIT. XT] On the office of Questor 49

is certain that such officers existed during the reign of Tullus Hostilius ; indeed the opinion held by most of the old authorities was that Tullus Hostilius was the first to introduce queestors into the administration of the state. 1. We find set down in Junius, Trebatius and Fenestella that they were originally called quzestors from the method of their inquisition. 2. Of these queestors some had their particular provinces assigned them by lot, in pursuance of a decree of the senate passed in the consulship of Decimus Drusus and Porcina. No doubt the assignment of provinces by lot was not the practice in the case of all quzestors, as the Emperor’s candidates were excepted ; these have nothing to do but to read the imperial missive in the senate. 3. At the present day the rule has come to be that queestors can be taken indifferently from the patrician and plebeian orders; the post amounts to a kind of commencement and first step in the discharge of public offices and in exercising the right of voting in the senate. 4. Of these officers there are some, as already mentioned!, who got the name of Emperor's candidates, and who have to read the Emperor’s epistles before the senate.

XIV. ON THE OFFICE OF THE PR2XTORS.

ULPIANUS (on Sabinus 26) Where the preetor is a filius- Familias his father can manumit in his court.

PauLus (on Sabinus 4) Indeed the law is that he can be emancipated or given in adoption in his own court.

ULPIANUS (on Sabinus 38) Barbarius Philippus, being at the time a runaway slave, was a candidate for the pretorship at Rome, and became preetor designate. Here, according to Pomponius, the fact of his being a slave did not stand in his way, so as to prevent him from being preetor: as a matter of fact, he did discharge the office. However, let us consider the question. Suppose a slave has kept his legal position a long time unknown, and has so discharged the office of preetor,—what are we to say ? will everything that he enunciated by way of edict or decree be null and void? or will it be [upheld] for the sake of those persons who took proceedings in his court in pursuance, say, of a statute or

1 Read diximus for dicimus. Cf. M.

M. J. 4

50 On the office of the Pretors [BOOK I

on some other legal ground? My own opinion is that nothing would be set aside, and this is the more indulgent view; the Roman people was quite competent to confer the authority in question,

even on a slave ; and, if they had known that he was a slave, they —

would have given him his liberty. Much more must this power be held good in the case of the Emperor.

ULpIanus (on all the Courts 1) A preetor cannot appoint himself to be guardian, or to be jwdex in some particular case.

XV. ON THE OFFICE OF Preefectus Vigilum.

PauLus (on the office of Preefectus Vigilum) In old days the business of preventing fires was superintended by the Threemen, who, because they kept watch at night, were called Trewmeiri nocturni; sometimes vediles and tribunes of the plebs took a part in the service. There was a body of government slaves stationed about the gate and the walls, who could be called out if necessary ; and besides them there were gangs of slaves belonging to private owners whose duty it was to put out fires, either for pay or gratuitously. Lastly, the Divine Augustus thought proper to have the mischief dealt with by a provision of his own,

ULPIANUS (on the office of Preefectus Vigilum) a number of fires having, on a particular occasion, occurred in one day.

PAULUS (on the office of Preefectus Vigilum) As the business of looking after the public safety was, so he held, suited for no one so well as the Emperor himself, nor was any one else equal to the duty, he therefore stationed seven detachments in suitable places, each detachment to protect two districts of the city; they were to be commanded by tribunes, with an officer at the head of them all, of the class of spectabiles, called the prefect of the watch. 1. This prefect deals with cases of incendiaries, housebreakers, thieves, robbers, harbourers of thieves, unless in any particular instance the offender is a person of such ruffianly and infamous character that the case is sent on to the prefect of the city. Conflagrations in most cases may be attributed to the negligence of occupiers, accordingly, where persons have paid insufficient attention to their fires, the prefect either orders them to be beaten, or else he remits the beating, but gives the parties a severe warning. 2. House- breaking is for the most part committed in blocks of chambers, or

.

Tir. xv] On the office of Prefectus Vigilum 51

in warehouses where people store the most valuable part of their property, and the housebreaker breaks open a storechamber or a closet or a chest; in which case punishment is generally inflicted on the caretakers, and this agrees with a rescript of the Divine Antoninus to Erucius Clarus. The Emperor tells him that, if his warehouses were broken into, he can examine by torture the slaves who had to guard them, even though the Emperor himself should be a part-owner of the slaves. 3. It should be mentioned that the prefect of the watch is bound to be up the whole night and to go the rounds with his men, wearing the proper shoes, 4. and pro- vided with hooks and axes, and they are to take care to warn all householders to see that no case of fire arises through want of attention. Moreover he is ordered to remind every one to have a supply of water ready in his upper room. 5. He has also judicial authority over the boxmen (capsarit), who engage for hire to take charge of people’s clothes at the baths, so that if they should be guilty of any malpractices in connexion with the above duty this magistrate deals with the case.

ULPIANUS (on the office of Preefectus Urbi) The Emperors Severus and Antoninus sent a rescript to Junius Rufinus the prefect of the watch in the following terms :—“if occupants of blocks of chambers or other persons carelessly omit to attend to their fires, you can order them to be beaten or scourged ; as for any who may be proved guilty of wilful arson, you may send them on to my friend Fabius Cilo, the prefect of the city; runaway slaves you must hunt up and send back to their owners.”

XVI. ON THE OFFICES OF PROCONSUL AND LEGATE.

ULPIANUS (Controversies 1) The proconsul may display anywhere the insignia of his office as soon as he is outside the city, but he only exercises authority within the actual province which has been assigned to him.

MaARcIANUS (Institutes 1) All proconsuls can exercise jurisdiction as soon as they have left the city, not however contentious jurisdiction, but only voluntary; for example free persons [can be emancipated| and slaves can be manumitted in their court, and adoptions can be executed there. 1. No one can

4—2

52 On the offices of Proconsul and Legate | BooK 1

manumit in the court of the proconsul’s legate, as he has not the requisite jurisdiction ;

ULPrIANuS (on Sabinus 26) nor can a man adopt before him: in short, the legate cannot take statute actions at all.

THE SAME (on the office of Proconsul 1) The proconsul ought to be careful not to be burdensome to the province in the matter of providing quarters, so the present Emperor and his father laid down in a rescript addressed to Aufidius Severianus. 1. No proconsul is at liberty to have his own grooms ; instead of these, in the provinces, soldiers discharge the service required. 2. It is better that the proconsul should set out without his wife ; still he can have his wife with him, if he likes, only he must under- stand that the senate held, in the consulship of Cotta and Messala, that if any offence were committed by the wife of a man who went out to occupy an official position, account and satisfaction would have to be demanded from the husband himself. 3. Before crossing the boundary of the province assigned to him, the proconsul ought to issue a proclamation announcing his arrival and containing some kind of recommendation of himself, by reference to any persons living in the province with whom he may be acquainted or connected, and above all the proclamation should excuse? the inhabitants from coming to meet him either publicly or privately, on the ground that it is most suitable that any persons who received him should do so in their own country. 4. He will be acting correctly and in accordance with the proper order of proceeding if he sends an announcement to the retiring proconsul to inform him on what day he will make his entry ; very often events of this kind, if they are unexpected and uncertain as to time, are distracting to the provincial population, and interfere with business. 5. When he enters he ought to take care of the following point too;—he should make his entry into the province at the particular spot at which it is customary to do so, and whatever city he first arrives at, either by land or sea, he should attend to what the Greeks call the “epidemize” or the “ cataplus ” (places of stay and port of arrival); as the provincial people are sure to set great store by the observation of customs and privileges of this kind. Some provinces have this particular distinction, that the proconsul always arrives by sea ; one of these is Asia, in fact it has gone so far that the present Emperor Antoninus Augustus, in answer to a request on the part of the Asiatic provincials, announced

1 Read eacusans for excusantis. Cf. M.

tir. xvi} On the offices of Proconsul and Legate 58

by rescript that the proconsul was absolutely bound to arrive at the province of Asia by sea, and land at Ephesus first of all the metropolitan cities. 6. After this, having made his entry into the province, he ought to delegate his judicial powers to his legate, but he must not do so before he has entered ; as it would be highly absurd if before he had acquired the jurisdiction himself,—and as a matter of fact he is not competent to exercise it before his entry,—he were to assign it to some one else, not having got any jurisdiction to assign. However if he should assign it before entry, and then, after entry, continue of the same mind, it would probably be held that the legate had the jurisdiction, not, that is, from the time when it was delegated, but from the time at which the proconsul entered the province.

PAPINIANUS (Questions 1) Sometimes a proconsul can delegate his judicial powers though he should not have yet come into the province ; suppose, for instance, he should be unavoidably delayed on his journey, whereas the legate was in a position to reach the province very early.

ULPIANUS (on the office of Proconsul 1) It is usual for the proconsul to assign to his legates the office of examining prisoners, the object being that they should first hear what the prisoners have got to say, and then send them on to him, they themselves releasing any innocent prisoner. But a delegation of this kind is irregular ; as, when a man has had given him the power of life and death, or of inflicting any inferior punishment, he cannot transfer it to another, and it follows that he cannot transfer the right of discharging accused persons, where that other is not qualified to hear the charge against them. 1. The proconsul being free to assign his judicial powers or not to assign them at his own discretion, so too, after assigning them, he has a right to recall the assignment ; still he ought not to do so without consulting the Emperor. 2. A legate ought not to consult the Emperor; he should go to his own proconsul, and this latter is bound to give an answer to any legate who consults him. 3. A proconsul is not obliged to make an absolute point of declining presents, but he must use moderation; in short, he need not be so scrupulous as to decline them altogether, but he must not be so grasping as to accept them to an excessive amount. This matter is put very well in a letter of the Divine Severus and the present Emperor Antoninus, in which they set down the limitations to be observed in this matter; the words are as follows:—“ With regard to

54 On the offices of Proconsul and Legate [BooK 1

presents, what we hold is this,—there is an old saying, ‘Not everything, nor every day, nor from everybody’; of course it is very discourteous to accept no presents at all, but it is a very contemptible thing to accept them indiscriminately, and to accept al] is absolutely sordid.” With regard to the injunction contained in the proconsul’s instructions, that neither he nor any other officer is to accept any gift or present or make any purchase except of supplies for everyday subsistence, this does not apply to trifling gifts, but only where the amount is beyond what is required for ordinary consumption. Still, on the other hand, presents must not be taken to such an extent as to make them amount to positive largess.

THE SAME (ibid. 2) If the proconsul arrives at some’ populous city, or at the chief town of the province, he must allow the place to be formally commended to him, and show no impatience at.receiving a complimentary address, as the provincial population claim the right of doing these things as an honour to themselves; he ought also to allow holidays in accordance with the customs and usages theretofore in vogue. 1. He ought to go round the temples and public works in order to examine whether they are in proper repair or require to be in any way restored, and, if there are any which are only in course of construction, he ought to see that they are completed, so far as the resources of the municipality admit; he ought also to appoint in the regular form careful superintendents of the works, and, if necessary, provide military attendants to support them. 2. As the proconsul has plenary judicial authority, he unites in himself the attributes of all those who administer justice at Rome either as magistrates or in virtue of extraordinary powers:

THE SAME (on the Edict 39) so that he has the highest authority in the province after that of the Emperor,

THE SAME (on the office of Proconsul 1) and no legal matter can arise in the province which he is not competent to dispose of. It is true that if a pecuniary question is raised which concerns the revenue and comes within the province of the imperial procurator, he will do well not to meddle with it. 1. Where a [ judicial] decree is required, the proconsul cannot dispose of the matter by ‘libellus’; matters which require that a case should be entertained judicially cannot be so disposed of. 2. The proconsul ought to be patient with pleaders, but he must maintain his

1 Read aliquam for aliam quam. Cf. M.

TIT. XVI] On the offices of Proconsul and Legate 55

character, so as not to appear abject, and he ought not to shrink from saying what he thinks, if he finds that there are people who trump up cases or buy titles, nor should he allow any one to make a motion before him, except those who have a right to do so according to the terms of his own edict. 3. Some kinds of cases the proconsul can dispose of out of court (de plano); he can in this way order that members of a family shall show proper deference to their paterfamilias, or freedmen to their patrons and patrons’ children ; he may admonish and put in dread out of court a son who is brought before him by his father on the alleged ground that he is leading an improper life ; in the same way he may correct an insolent freedman either by reprimand or by beating. 4. He is bound therefore to take care that applications are made to him in some regular course, so that, in short, every one who has a request to make may get a hearing, lest it come to pass that, if concession is made to the rank of one applicant or the importunity of another, persons in a humble position, who either have not secured the assistance of advocates at all or else have only found such as are inattentive and men of no station, will be unable to state their claims. 5. It will also be his duty in most cases to allow the assistance of counsel to women or persons who are under age or otherwise helpless, or to such as are out of their mind, if any one asks for it on their behalf; or, if no one asks, he ought to allow it of his own accord. Again, if any one should declare that he is unable to get counsel, owing to the power of his opponent, in this case too the proconsul ought to find him one. _ It is not allowable that any one should be borne down by the power of his opponent; in fact it tends to bring odium on the officer himself who is at the head of the province, if there is some one who behaves with so little self-restraint that nobody will venture to undertake to appear as a pleader in opposition to him. 6. The above observations apply to all governors equally, and they ought to be attended to by others as much as by the proconsui.

THE SAME (ibid, 10) —_‘It must be borne in mind that until the new proconsul arrives, the retiring proconsul is bound to go on discharging all duties ; the proconsulship is one continuous office, and the interests of the province require that there should be some one there by whose action the provincial inhabitants can get their business disposed of: accordingly he is bound to ad- minister justice until the new proconsu! arrives. 1. Dismissal of his legate before he leaves the province himself is a thing

11

12

13

14

15

16

56 On the offices of Proconsul and Legate [poox 1

which he is warned against doing by the lex Julia on extortion and also by the rescript of the Divine Hadrian to Calpurnius Rufus, the proconsul of Achaia.

VENULEIUS SATURNINUS (on the office of Proconsul 2) If any offence is committed which requires specially severe punish- ment, the legate ought to have the case removed to the court of the proconsul: he has not himself the right to put to death or imprison or inflict a severe flogging.

PAULUS (on the Edict 2) A legate who exercises jurisdiction in pursuance of a delegation has the power of appointing a judea.

POMPONIUS (on Quintus Mucius 10) Legates of the pro- consul have no authority of their own, so long as no jurisdiction has been delegated to them by the proconsul.

ULPIANUS (on the lex Julia et Papia 20). A proconsul does not have more than six fasces.

Licinnius RuFinus (ules 3) The proconsul’s legates can themselves appoint guardians.

ULPIANUS (on the Edict 2) As soon as the proconsul passes the gate on entering Rome he lays aside his «mperiwm.

XVII. ON THE OFFICE OF Preefectus Augustalis.

ULPIANUS (on the Edict 15) The prefect of Egypt does not divest himself of the prefectship, or the right of imperium given him by statute under Augustus on the model of the proconsulship, until his successor has actually entered Alexandria, even though the latter should have arrived at the province ; this is set down in the prefect’s instructions.

KOVIAUT.

ON THE OFFICE OF Preeses.

MACER (on the office of proeses 1) The title of preses is a term of general signification, consequently proconsuls and imperial legates and governors of provinces in general, though they should be senators, are called presides; the term proconsul is of special application.

TIT. XVII] On the office of Preses 57

ULPIANUS (on Sabinus 26) A preeses can adopt in his own court, just as he can emancipate a son or manumit a slave.

PavuLus (on Sabinus 13) The preses of the province has a right of ¢mperium over the men of his own province only, and he has the right only while he is in the province ; if he leaves it he becomes a private person. Sometimes he has imperium even over outsiders, if they commit any active offence ; it is part of the instructions given by the Emperor that the governor of the province shall take measures for ridding the province of evil- disposed persons, and no distinction is made as to the place from which such persons come.

ULpPiIanus (on the Edict 39) The preeses of the province has the highest authority in his province after that of the Emperor.

THE SAME (on all the Courts 1) The yreeses of the province cannot appoint himself guardian any more than he can make himself jaudex in a particular case.

THE SAME (Opinions 1) The preses of the province is bound to put a check on unlawful demands and such as are made with duress, also to the practice of making persons contract sales and execute assurances by putting them in terror, or by promising money which then is not paid. The preses is also to see that no one makes gain or suffers loss unjustly. 1. The actual truth is not affected by a mistake of gossiping reporters’; the preeses should follow whatever is the proper course considering established facts. 2. The prceses of the province should make it matter of conscience to see that persons of influence and resource do not inflict any wrong on those in humbler station, and do not pursue such as take up the cause of these latter with vexatious charges where they are innocent. 3. The preses of the province ought to take care to keep down unauthorized offerers of aid who, on pretence of a desire to support officers in military command, proceed to alarm the public ; and, where any such are found, he should repress them; he should also prevent unlawful exactions being made on pretence of levying taxes. 4. The proses should make it a matter of particular concern that no one should be prohibited from carrying on any lawful business, and also that nothing that is prohibited should be practised, and that no penalties should be imposed on innocent persons. 5. The preeses of the province will take care that men of small means shall not suffer

1 Read gestorum for gestarum. Cf. M.

58 On the office of Presses [BOOK I

the wrongful treatment of having their sole light or their scanty furniture taken from them for the use of others on the ground of the arrival of official attendants or soldiers. 6. The preeses of the province must see that nothing is done on the alleged behalf of soldiers which does not serve their general needs, by some of the number who put forward an unfair claim for some advantage confined to themselves. 7. The event of death ought not to be laid to the account of the physician ; but it is equally true that he ought to be held answerable for any mischief which he has occasioned by want of skill; the wrong done by one who gives incorrect advice at a dangerous crisis ought not to be set down to human frailty and so treated as no offence at all. 8. Officers who rule whole provinces have the power of life and death, and they have authority given them to send offenders to the mines. 9. Where the preses, after imposing a fine, discovers that it cannot be discharged out of the present means of the persons whom he has ordered to pay it, he must check improper eagerness on the part of the official who has to demand the money, and relieve the party from pressure’ for payment. When a fine is remitted by the governor of the province on the ground of poverty, it ought not to be exacted.

THE SAME (ibid. 3) The proses of the province ought to inspect buildings, and, on sufficient cause appearing, compel the owners to repair them, and, in case of refusal, he should employ lawful means for remedying the unsightly condition of the premises.

JULIANUS (Digest 1) I have often heard the present Em- peror declare that where a rescript says “You can apply to the officer who is at the head of the province,” this does not put the proconsul or his legate or the preeses of the province under the necessity of undertaking to hear the case, he must consider whether he ought to hear it himself or appoint a jude.

CALLISTRATUS (on judicial inquiries 1) As a general rule, whenever the Emperor issues a rescript by which he refers a matter to the preses of a province ; for example, where he says “ You can apply to the officer who is at the head of the province,” perhaps adding “he will consider what steps he ought to take,” the pro- consul or the legate is not put under the necessity of undertaking to hear the case; but? even if the words “he will consider what

1 Read necessitati for necessitate. Of. M. 2 sed inserend. before guamvis, delend. before ts @st. deb. Of. M.

LO

12

14

TIT. XVIII] On the office of Preeses 59

steps he ought to take” are not added it is his duty to consider whether he ought to hear it himself or appoint a judex.

HERMOGENIANUS (Epitomes of Law 2) In all cases which are heard at Rome by the preefect of the city, or the preetorian prefect, or, again, by the consul, or the preetor, or any other Roman magistrate, the proper tribunal in the provinces is that of the corrector or the preses.

MARCIANUS (Institutes 3) In the provinces all kinds of applications come within the competency of the preses, though at Rome they are made to a number of different judges :

PROCULUS (Epistles 4) But although the officer who is at the head of the province has to occupy the place and discharge the duties of every Roman magistrate, still it is his duty to consider not so much what is done at Rome as what the case requires.

ULPIANUS (on the office of Proconsul 7) It may be expected from any preeses of character and conduct that he should take care that the province which he governs shall be settled and orderly. This he will have no difficulty in bringing about, if he studiously aims at securing that the province shall be clear of bad characters, and he accordingly seeks them out; in fact he is bound to seek out persons guilty of sacrilege, highway robbers, manstealers and thieves, and punish them according to their respective offences ; he should also restrain those who give them shelter, as without such assistance a highway robber cannot long escape detection. 1. In the case of lunatics whom their friends cannot keep under control, the preeses ought to apply a remedy, viz. that of confining them in prison. This was laid down by the Divine Pius. It is true that the Divine brothers held that, in the case of a man who was guilty of parricide, an inquiry should be made as to whether he was feigning madness when he committed the deed, or was really and truly out of his mind, so that if he was feigning he might be punished, but, if he was insane, he might be detained in prison.

MACER (on criminal trials [ gudicia publica] 2) The Divine Marcus and Commodus issued a rescript to Scapula Tertullus in these words: “If you have clearly ascertained that Ailius Priscus is in such a state of insanity that he is permanently out of his mind and so entirely incapable of reasoning, and no suspicion is left that he was simulating insanity when he killed his mother, you need not concern yourself with the question how he should be

15

16

60 On the office of Preses [BOOK I

punished, as his insanity itself is punishment enough. At the same time he must be closely confined, and, if you think it advisable, even kept in chains ; this need not! be done by way of punishment so much as for his own protection and the security of his neighbours. If however, as is very often the case’, he has intervals of sounder mind, you must carefully investigate the question whether he may not have committed the crime on one of these occasions, and so have no claim to mercy on the ground of mental infirmity ; and, if you should find that anything of this kind is the fact you must refer the case to us, so that we may consider, supposing he committed the act at a moment when he could be held to know what he was doing, whether he ought not to be visited with punishment corresponding to the enormity of his crime. But when we learn by a letter from you that his position in respect of place and treatment is such that he is in the hands of his friends, even if confined to his own house, your proper course will be, in our opinion, to summon the persons who had the charge of him at the time and ascertain how they came to be so remiss, and then pronounce upon the case of each separately, according as you see anything to excuse or aggravate his negligence. The object of providing keepers for lunatics is to keep them not merely from doing harm to themselves, but from bringing destruction upon others ; and if this last-mentioned mischief should come to pass, it may well be set down to the negligence of any who were not sufficiently assiduous in the discharge of their office.”

MARCIANUS (on criminal trials 1) One point requires attending to: the officer who governs a province must not pass the boundary, save for the purpose of discharging a vow, and even then he must not spend the night beyond the border.

MACER (on the office of Preeses 1) It is provided by a decree of the senate that actions must be entertained very sparingly on any questions arising upon contracts made by provincial governors or their suite or their freedmen before they came into the province, it being understood that where any such person forbears

_ to bring an action in consequence of this rule, the right of action

will be restored to him after he leaves the province. But if any- thing happen involving no act of his own,—for example, he is the victim of some énjuria or theft,—the court will so far entertain his case as to let him proceed to litis contestatio, and then an order can be made that any property stolen should be produced and

1 Read quod non tor gquoniam. Of. M. * sit inserend. after saniore.

17

18

19

TIT. XVIII] On the office of Preeses 61

deposited, or that a promise should be given with security that

the party should appear to the action or that the thing will be produced.

CELSUS (Digest 3) If the preses of the province should happen to manumit or appoint a guardian before he has had notice that his successor has arrived, these acts will be held valid.

MODESTINUS (Rules 5) It is provided by plebiscite that no preeses shall accept a gift or present, save one of eatables and drinkables for a few days’ consumption.

CALLISTRATUS (on judicial inquiries 1) The magistrate who dispenses justice should take care to be quite ready to entertain applications, but he should not let anyone treat him with disrespect. Accordingly it is inserted in the instructions given to the governors of provinces that they are not to allow the provincials to be ona footing of easy familiarity ; as intercourse on equal terms is apt to lead to rank being disrespectfully treated. 1. Again, when the governor is hearing a case judicially, he should not fire up against persons of whom he has a bad opinion, nor ought he to be moved to tears by the entreaties of those in distress; a man is not behaving like a firm and good judge who! allows his countenance to betray his feelings. To put it in a few words, the judge should so administer justice as to allow the impression produced by his personal character to enhance the authority of his rank.

PAPINIANUS (Responsa 1) The imperial legate, that is, the preeses or corrector of the province, does not by resigning his office lose his right of emperiwm.

PAPINIANUS (on the office of assessors) Where the preeses has before him a case of a slave being corrupted, or a female slave being debauched, or a male slave being unnaturally assaulted, then, if the slave alleged to be corrupted is the overseer of some absent” person, or is in such a position that, over and above any loss in respect of property, the mischief amounts to the ruin of the owner’s whole establishment,—he ought to inflict very severe punishment on the offender.

1 cujus perhaps slipshod in the author quoted : si cujws would be more gram- matical. 2 Read absentis for agentis. Cf. M.

62 On the office of Imperial Procurator [BooK I

xX. ON THE OFFICE OF IMPERIAL PROCURATOR OR RATIONALIS.

ULPIANUS (on the Edict 16) Any acts and deeds of the imperial procurator are acknowledged [? comprobantur| by the Emperor as if they were the Emperor’s own acts. If the imperial procurator should deliver something belonging to the Emperor as if it were his own, I should say that he does not pass the property in it; he only passes the property when he is acting in the Emperor’s behalf and delivers with his consent. In fact if he does any act by way of effecting a sale or a donation or a compromise of matters in dispute, it is void ; as it is no part of his duty to dispose of the Emperor’s property, but to administer it carefully. 2. The following is a special attribute of the imperial procurator ; a slave of the Emperor can enter on an inheritance by his order, and, if the Emperor should be appointed heir, the procurator can himself, by intermeddling with a rich inheritance make the Emperor [complete] heir.

PauLus (Sentences 5) But if the property in respect of which the Emperor is appointed heir is insufficient for the debts, then, when the fact is ascertained, the course is to consult the Emperor ; since when a question arises as to entering on or declining such inheritances, it is the person appointed heir whose wishes should be ascertained.

CALLISTRATUS (on judicial mquiries 6) Imperial pro- curators? have not the power of deporting; this is a punishment which they are not competent to inflict. 1. But if they should forbid any one access to land belonging to the Emperor on the ground that his behaviour tended to a riot or was otherwise a wrong to the imperial tenants, the party is bound to keep away ; this is laid down in a rescript of the Divine Pius to Julius. 2. It may be added that the procurator is not able to give a man [who is deported | leave to return, and this is laid down in a rescript of the present Emperors Severus and Antoninus written in answer to an application by one Hermias.

1 Sentence hopeless. 2 Read procuratores for curatores. Cf. M.

TIT. XX | On the office of Juridicus 63

».O-0 ON THE OFFICE OF Juridicus.

ULPIANUS (on Sabinus 26) A man can execute an adoption in the court of the jwridicus, as the latter is allowed to take statute actions.

THE SAME (ibid. 39) The juridicus who holds office at Alexandria is allowed by an enactment of the Divine Marcus to appoint guardians.

XXI. ON THE OFFICE OF ONE TO WHOM JURISDICTION IS DELEGATED.

PAPINIANUS (Questions 1) Wherever any powers are con- ferred specially by a statute or a decree of the senate or an imperial enactment, if the officer delegates his jurisdiction, such powers do not pass ; but powers which he possesses in right of his magisterial office can be delegated. Hence those magistrates are clearly in the wrong who having the power to hold a criminal trial conferred upon them by a statute or a decree of the senate, such as the lex Julia de adulteriis, or any other similar enactment, thereupon proceed to delegate their jurisdiction. A very strong argument in support of the above is the following :—in the lex Julia de vi it is expressly provided that the judge on whom there falls the duty of holding the inquiry can delegate it if he goes away; so that he has a right of delegation only in case he should be absent, whereas in general jurisdiction can be delegated equally well by a magistrate who remains on the spot. Should the case to be tried be that of a man being murdered by his own slaves, the preetor will not be at liberty to delegate the power of holding a trial, deriving it as he does from a decree of the senate. 1. When a man has undertaken a jurisdiction which was given him by delegation, he has no original powers of his own, he only exercises the jurisdiction of the officer who delegated. The better opinion is that according to long-established practice “jwrisdictio” may be transferred, but the right of mere command (merum imperium) which is given by a statute will not pass ; hence no one holds that the legate of the proconsul has the power of inflicting punishment

64 On Jurisdiction Delegated [BOOK I

when he takes the proconsul’s jurisdiction by delegation. (Note by Paulus: the better opinion is that when jurisdictio is delegated the right of direct command which is bound up with jurdsdictio passes too.)

ULrPianus (on all the Courts 3) Where the preses delegates his jurisdiction, the person to whom it is assigned cannot summon a board (consilium). 1. Where guardians and curators wish to sell land [in those respective capacities] the preetor or prceses can give permission on sufficient cause shown ; but if he delegates his jurisdiction, he can by no means thereby transfer the right of holding the requisite inquiry.

JULIANUS (Digest 5) Even where the person who carries on another man’s jurisdiction is himself a preetor, still so long as he is discharging the office of the other, he is not acting in virtue of his own powers, but is administering justice in the place of the officer by whose delegation he sits.

Macer (on the office of Preeses 1). The right of holding inquiry into the case of a guardian who is ‘suspected’ can be delegated. Indeed it has been laid down by rescript, with a view to the benefit of wards, that, where jurisdiction is delegated in general terms, the above right is included ; the words are as follows :—“The Emperors Severus and Antoninus to Braduas, Proconsul of Africa. As you have handed over your own juris- diction to your legates, it follows that they can hold an inquiry into cases of guardians who are suspected.” 1. Delegation can be validly made of the power to grant possessio bonorum, the power to make an order granting possession in case an undertaking against damnum infectum should not be given to one who applied for it, to admit a woman into possession on behalf of an unborn child, to admit a legatee into possession for the purpose of pre- serving legacies.

Pauuus (on Plautius 18) It is quite clear that [a man] to whom jurisdiction is delegated cannot delegate it over to another. 1. When jurisdiction is delegated to a private person, the delegation is held to include ¢mperium as well, such as does not amount to merum imperium; there is no such thing as jurisdiction not involving authority to inflict some slight punishment.

TIT. XXII | On the office of Assessors 65

».O.4i B ON THE OFFICE OF ASSESSORS.

PAULUS (on the office of Assessors) The whole office of an assessor,—one, it may be said, in which the skill of those learned in the law comes into play,—is exercised in cases which are pretty much such as follow: judicial inquiries, motions, applications by libel, edicts, decrees, epistles.

MARCIANUS (on criminal trials 1) A freedman can be an assessor. As for persons under ¢nfamia, there are no statutes forbidding them to act, but in my opinion they are not qualified to discharge the duty of assessor, and in fact there is said to be an imperial enactment to this effect.

MACER (on the office of Preeses 1) If some one province comes to be divided and the two parts are put under two presides respectively, as we see in the cases of Germania and Mysia, a native of either part can be an assessor in the other, and he is not held to be acting in his own province.

PAPINIANUS (Responsa 4) On the decease of an Imperial legate his attendants (comites) have a right to their pay for the rest of the period for which the legate appointed them to serve, provided always that they do not act as attendants to any one else during the time. A different rule is applied where the legate made way for a successor before the regular termination of his office.

PAULUS (Sentences 1) A member of a board’, while acting as assessor, is by no means at liberty to adjourn the matter into his own audience chamber, but he is allowed to take it into the chamber of some one else.

PAPINIANUS (Responsa 1) Where a municipal curator sum- mons a board, a man of the same municipium is not debarred from acting as assessor, as he is not in receipt of official pay.

1 Read constliario for consiliari. Cf. M.

1

SECOND BOOK.

I. On Jurisdictio.

ULPIANUS (Rules 1) The office of one who exercises juris- dictio is most comprehensive ; he can grant [an order for] bonorum possessio and put persons into possession, he can appoint guardians to children under age who have none, he can nominate a judge to parties in litigation.

JAVOLENUS (extracts from Cassius 6) When an officer is given jurisdictio, he is also clearly allowed those powers without which jurisdictio cannot take its due course.

ULPIANUS (on the office of Questor 2) Imperium is either simple (meruwm) or mixed. Simple tmperiwm is where an officer is in possession of the power of the sword for the purpose of punishing! evildoers; when it is also called potestas. Mixed am- perium, which in fact includes jurisdictio, is that which is evinced in granting bonorum possessio; jurisdictio extends to the power of nominating a judge.

THE SAME (on the Edict 1) | The power of ordering an under- taking to be given by a preetorian stipulation, and of putting persons into possession, belongs more to emperium than to juris- dictio.

JULIANUS (Digest 1) By the custom of our forefathers it has been brought to pass that an officer who can delegate his jurisdictio can only be one who possesses it in his own right and not by the gift of another ;

PAULUS (on the Edict 2) because [in the latter case] the jurisdictio would not be given him directly, and the jurisdictio

1 gn inserend. after animadvertendum.

TIT. 1] On jurisdictio 67

which he has by delegation is not bestowed by the statute but only confirmed by it. Hence if an officer who delegated his jwris- dictio dies before the person to whom it was delegated has begun to execute the matter in hand, then, according to Labeo, the delegation is annulled, in accordance with the rule in ordinary cases [of mandatum|.

ULPIANUS (on the Edict 3) If any one should maliciously destroy a notice which is made in the [pretor’s] albwm, or on paper [charta], or any other substance, such notice being relative to the preetor’s standing jurisdiction, and not dealing with a special occasion, an action is allowed against the offender for five hundred auret, in which any one may sue (populare est).

1, The words of the Edict include slaves and sons under potestas, moreover the preetor refers to both sexes alike. 2. Should the damage be done while the notice is being put up, or before it has been put up, no doubt the words of the Edict will not apply, but, according to Pomponius, the principle of the Edict ought to be held to go far enough to include this case. 3. In the case of slaves, where their owners do not undertake their defence, and in that of persons destitute of means, bodily torture is to be used. 4. The words of the Edict include the term “maliciously” [dolo malo]; because, if any one should act in the way described through ignorance, or want of education, or by the pretor’s own order, or by accident, he is not liable. 5. The Edict extends to the case of one who carries the written matter away, though he should not damage it; and it applies equally whether the party commits the offence with his own hands or instigates another to commit it. If one man did the act without malice, but another induced him with malice, the one who induced will be liable ; if both act with malice, both will be liable; certainly, if several join in the act, whether they do damage or instigate to it, they will all be liable;

GaAIus (on the provincial Edict 1) and it goes as far as this—that it is not enough for one of the parties alone to pay the penalty.

PAULUS (on the Edict 3) If a household of slaves should damage the album, the Edict does not deal with the case in the way in which it does with theft, by providing that if the owner, assuming that he chose to defend the action, pays on behalf of one of such slaves as much as the man would pay himself if he were free, then no action is to be allowed in respect of the others: the reason for this may be that, in the case we are considering, the

5—2

10

11

68 On jurisdictio [BOOK II

object is to redress a slight offered to the dignity of the preetorian office, and it is regarded as a case of so many distinct acts; just as, when a number of slaves have committed an injuria or have done damage to property, [the same rule is observed,| on the ground that there are several distinct acts, and not one only as in the case of theft. Octavenus says that the slave-owner ought equally to be relieved in the case under discussion; but this can only be said where the slaves maliciously contrive that some one else shall destroy the album, as in that case there is one common plot, and not a num- ber of distinct acts. Pomponius makes the same remark (lib. X.).

ULPIANUS (on the Edict 3) The officer who presides at the administration of justice ought not to administer it for his own case nor for that of his wife or his children, nor for his freedmen or any others whom he has about him.

Gatus (on the provincial Edict 1) If the same plaintiff brings a number of actions against the same defendant, and the amount sued for is low enough in every separate case to bring it within the jurisdiction of the judge, but the aggregate amount of all taken together exceeds the limits of his jurisdiction, Sabinus, Cassius and Proculus hold that the action can be carried on before the judge in question, and this opinion is confirmed by a rescript of the Emperor Antoninus. 1. Again, if there are reciprocal rights of action between two parties, in respect of which one asks for a sum below the limit, and the other for one above it, the one who asks for the smaller sum must proceed before the same judge, so that it may not be in the power of my opponent, if he is disposed to act vexatiously, to say whether I shall be allowed to argue my case before the same judge or not. 2. If a single action is brought in which a number of persons are plaintiffs at the same time, as, for instance, an action for dividing an inheritance (familie erciscunde), for partition of common property (commund dividundo), for settling boundaries (finiwm regundorum)—ought we, in order to determine the jurisdiction of the judge who takes the case, to consider the value of the separate shares, which is what Ofilius and Proculus maintain, on the ground that each person is a party to the suit in virtue of his own particular share, or ought we rather to consider the value of the whole property, because the title to the whole is brought in question at the trial, and the whole may possibly be adjudged to one party? This last view is held by Cassius and Pegasus, and there is no doubt their opinion is reasonable.

12

14

15

META 0] On jurisdictio 69

ULPIANUS (on the Edict 18) A municipal magistrate is not allowed to visit a slave with severe punishment, but he cannot be denied the right of inflicting moderate chastisement.

THE SAME (on Sabinus 51) The officer who orders any one to act as yudex must be a magistrate. 1. Magistrates, or persons who are invested with any official authority, such as proconsuls, or preetors, or governors of provinces in general, cannot order a man to act as judge on a day by which they will themselves have returned to private life.

THE SAME (on the Edict 39) It is established law and is in accordance with actual practice that where an officer of higher or equal rank submits to the jurisdiction of another, the juris- diction may be exercised either for or against him.

THE SAME (on all the Courts 2) If parties by mistake go before one preetor, intending to go before another, the proceedings so far are void. No one can be allowed to say that the parties agreed upon the particular preses, since, as Julianus says, where persons are under a mistake there is no agreement: what indeed can be more inconsistent with agreement than a mistake which is a proof of ignorance?

THE SAME (on all the Courts 3) It is the practice of the preetor to delegate his jurisdiction, and he either delegates it altogether, or with reference to a particular case; whereupon the person to whom the jurisdiction is delegated acts in the place of the officer delegating, and not in his own character.

THE SAME (Opinions 1) Just as the preetor is able to delegate his entire jurisdiction to another, so he is able to delegate it with reference to particular persons or a particular case, especially where he has a sufficient reason in the fact that he himself under- took the advocacy of one of the parties before he was a magistrate.

AFRICANUS (Questions 7) If two parties should agree that some other preetor should exercise jurisdiction than the one to whom it regularly belongs, and, before application were made to the praetor agreed upon, there should be a change of mind,— it is beyond doubt that no one could be compelled to abide by such an agreement.

ULPIANUS (Fideicommissa 6) An unmarried woman was defendant to an action which was brought before a judge who was competent to hear it, and judgment was given against her; after which she became the wife of a man who was subject to a

20

70 On jurisdictio [BOOK II

different jurisdiction, and the question arose whether the order of the original judge could be carried out. My answer was that it could, as the order was already made; but in fact I should hold the same if the marriage had taken place after the hearing had begun, but before judgment was given; so that the decision would properly be given by the original judge. A similar rule ought to be observed in all cases of this kind. 1. Whenever a question arises as to whether the amount which determines jurisdiction is reached or not, the point to inquire into always is how much is sued for, not what is the amount of the debt.

PAULUS (on the Edict 1) An officer who exercises juris- diction outside his local limits may be disobeyed with impunity. The same rule holds where he affects to exercise jurisdiction with reference to an amount beyond his competency.

a

Il.

A MAN TO BE DEALT WITH AFTER THE LIKE RULE TO THAT WHICH HE MAINTAINED AGAINST ANOTHER.

ULPIANUS (on the Edict 3) This Edict is one of perfect fairness and can give no reasonable occasion of protest to any one: indeed, how can anybody complain of having the same law applied to his own case that he applied or caused to be applied to other people? 1. “If a man who holds any magistracy or authority should establish any new law to the prejudice of another, he must himself at any time thereafter, on the application of an opponent of his own, be dealt with in accordance with the same rule; again, if a man should procure the application of any new law in the court of one holding some magistracy or! authority, judgment must at any time thereafter, on the application of his opponent, be given against him in accordance with such new law,” so that, in short, whatever a man himself deemed to be just in the case of another, he must suffer the same to be held good in his own case too. 2. The words “whatever the officer who presides at the jurisdictio establishes” are understood by reference to the result ; we must not confine ourselves to the words; consequently, if the officer should wish to establish something for law, but should be checked, and his judgment should not take effect, the Edict does

1 Read ve for que.

TIT. 11] After the like rule ete. 71

not apply. The word “statuit” (establishes) implies that the matter is completed, and the wrong is consummated, not merely begun. It follows that if a man exercises jurisdiction between parties between whom he is not competent to exercise it, then, seeing that the proceeding is treated as null and void, and there is in fact no decision at all, we must hold that the Edict does not apply; how indeed could there be any harm done by the attempt, where the illegality produced no effect?

PAULvS (on the Edict 3) By this Edict what has to be punished is malice in the person exercising jurisdiction ; if the law has been laid down otherwise than it ought, owing to an over- sight on the part of the assessor, the ill consequence ought to fall on the assessor himself, and not on the magistrate.

ULPIANUS (on the Edict 3) If a man has procured for himself the benefit of an unjust rule being applied to an opponent, he will be dealt with according to the same rule himself only where the thing was done on his own application; if it was not on his application, he will suffer no penalty. But if he got the order, then, whether he put the rule in force or only obtained leave to put it in force without doing so, he will be punished under this Edict. 1. If it was my procurator who made the application, the question arises who it is that will be dealt with according to the same rule; Pomponius holds that it is myself only, at any rate, if I specially instructed the procurator, or subse- quently ratified what he did. But if a guardian or the curator of a lunatic or minor made the application, he is punished under the Edict himself. The same course must be followed with a procurator too, if he was made ‘procurator on his own behalf. 2. The penalty is laid down against every one who comes within the terms of the Edict, on the application not only of the party who was injured by him, but of any person whatever who takes proceedings at any distance of time. 3. Suppose a person for whom you are surety obtains an order forbidding some debtor of his to plead [a particular] exceptio against him, and, after that, you desire to plead [a similar| exceptio in respect of your engage- ment as surety, neither you nor the principal debtor himself can get leave to do so; even though in the meantime this should entail a wrong on you if your debtor is insolvent. But if you yourself are hit by the Edict, the principal debtor can still plead the exceptio, but you cannot, so that the penalty incurred by you [the surety] will not affect the principal debtor; accordingly you

72 After the like rule ete. [BOOK II

will have no right of action on mandatum against him. 4. If my son in the exercise of a magistracy incurs the penalty of the Edict, will the Edict apply in respect of such actions as I bring in his right? My opinion is that it will not, or else my relation to him will put me in a worse legal position. 5. With regard to the pretor’s declaration that a person in the case mentioned is to be dealt with “after the same rule,’ will the liability to this penalty pass to his heir as well? Julianus informs us that not only the person himself loses the right of action, but his heir does too. 6. He adds this, which is not unreasonable, that he is exposed to the penalty in question not only in connexion with such rights of action as he had at the time when he brought himself within the terms of the Edict, but in connexion also with any that he may acquire subsequently. 7. The principle under discussion (so Julianus holds) will not allow money already paid to be recovered, as there was still ground for the payment in natural law, and that fact bars the recovery.

GAIUS (on the provincial Edict 1) The preetor makes one rather nice reservation, in these words :—“save always where one of the above persons [against whom relief is promised] had acted to the prejudice of some one who had himself done similar prejudice to another.’ This reservation is perfectly sound, as otherwise a magistrate who seeks to uphold the Edict, or a litigating party who desires to enjoy the benefit conferred by the Edict, might himself incur the penalty which the very Edict imposes.

Il.

WHERE A MAN REFUSES OBEDIENCE TO THE MAGISTRATE EXERCISING JURISDICTION.

ULPIANUS (on the Edict 1) All magistrates, save only duumvirs, are allowed, in accordance with the rights appertaining to their respective authorities, to protect their administration of justice by means of penal sentences. 1. A man is held to refuse obedience to the magistrate exercising jurisdiction when he declines to comply with the final direction given in the course of the magis- trate’s administration of the law; for example, where he refuses to allow moveable property to be made the subject of a vindication against him, but does allow it to be driven or carried away [, it is

TIT. 111 | Where a man refuses obedience 73

held that he obeys]1; but, if he resists even these subsequent measures, then it is held that he does not obey. 2. If a procwrator or guardian or curator refuses obedience to the officer exercising jurisdiction, the offender is himself punished, not the principal or the ward. 3. This Edict, so Labeo says, applies not only to a defendant who disobeys, but to a plaintiff as well. 4. The action is not for an amount representing the plaintiff’s interest in the matter, but is confined to the direct loss ; and, as it provides a penalty simply, it is not allowed to be brought after a year nor against the heir of the wrongdoer.

IV. On CITATION.

PAULUS (on the Edict 4) To cite a person to appear is to cite him for the purpose of a trial at law.

ULPIANUS (on the Edict 5) No citation can be made of a consul or a prefect or a preetor or a proconsul or any other magistrate who possesses imperium, and who consequently can exercise coercive powers and order persons to be put in prison; nor of a pontifex while he is performing sacred rites, nor of such as cannot stir from the spot where they are, because of the religious character attached to the place, nor, again, of one who is riding on his way in the service of the government on a horse which is state property. Furthermore a man must not be sum- moned who is in the act of being married, nor a woman in the like case; nor a judge who is at the moment hearing a case; nor a man who is pleading before the preetor; nor one who is conducting the funeral of a member of his own household, or is performing due rites to the dead;

CALLISTRATUS (judicial inquiries 1) nor persons who are attending a funeral ;—and this rule we find is confirmed by a rescript of the Divine Brothers :—

ULPIANUS (on the Edict 5) nor any one who is compelled to appear in court or in some particular place in order to take part in a trial; nor lunatics nor infant children. 1. The preetor says “No one is to cite to appear without my permission a parent, a patron or patroness, or the children or parents of a patron or

1 oblemperasse inserend. M.

74 On Citation [BOOK II

patroness.” 2. The word parent must here be taken to be applied to both sexes, but whether it includes all ancestors, however remote, is a question. Some say that the term parent is applicable up to the fifth degree in the ascending line (usque ad tritavum), and those more remote still are called majores; this, according to Pomponius, was the view of the old lawyers; but Gaius Cassius applies the word to all ancestors, however remote; this makes it a more honourable appellation, and the usage has very properly been adopted. 3. The term parent, in the opinion of Labeo, may be applied to those who have become fathers and mothers in slavery, and is not confined?, so Severus said, to cases in which the children are legitimate, so that even where a son is the off- spring of random intercourse, he cannot cite his mother,

Pauuus (on the Edict 4) because the mother is always an ascertained person, even though she conceived in random inter- course; but the father is the person pointed out as such by the marriage.

THE SAME (Sentences 1) No one can cite his natural parents, the same unvarying tokens of respect are to be observed towards all parents.

THE SAME (on the Edict 4) A man may cite with impunity the parents of his adoptive father, because they are not his own parents, as he can only become cognate to those to whom he becomes agnate.

ULPIANUS (on the Edict 5) A man cannot cite his adoptive father as long as he is in his pofestas, though this depends more on the law of potestas than on the Edict of the preetor ; except in the case of a son who has castrense peculium, as in such a case leave will be given on cause shown. But a natural parent cannot be cited even by a son who is in some other family by adoption. 1. The Edict has “patron or patroness”: the term patron must be here held to comprise persons who have manu- mitted out of slavery, and to apply where a man had exposed a decision in favour of free birth procured collusively ; also where any one is pronounced a freedman in a ‘ prejudicial’ action on the question, when, in fact, he was not one, or where I swear that a man is my freedman; just as, conversely, I am not held to be patron if the decision is against me, or I tender the oath and the man swears that he is not my freedman. 2. But if I compelled

1 Read tantum for tamen. Cf. M.

TIT. Iv] On Citation 75

10

my freedman or freedwoman to take an oath not to marry, he or she may cite me with impunity. Celsus indeed says that in the case of a freedman in this position the immunity [forfeited by me] cannot pass to my son in my lifetime; but Julianus gives the contrary opinion; and most authorities agree with Julianus’s view. If this is correct, the result will be that in this case the patron may be cited to appear, but the son, being regarded as free of offence, cannot be cited.

PAULUS (on the Edict 4) Again a man who manumits a slave in pursuance of a fideicommissum cannot be cited [by the person manumitted] though he might have been cited in order to compel him to manumit.

ULPIANUS (on the Edict 5) But if I bought the slave on the express understanding that I should manumit him, and he acquires his liberty through the enactment of the Divine Marcus, then, seeing that I am his patron, he cannot cite me. If, on the other hand, I bought him with his own money, and then broke faith with him, I shall not be deemed to be his patron. 1. Where a woman is compelled to prostitute herself contrary to the conditions of sale, the vendor will be her patron, assuming that she was sold on the terms that if she were compelled to prostitute herself she should become free. But if a vendor in the same case reserves the right to lay hands on the woman [so as to recover possession of her, in the same event], and, having done so, he himself compels her to prostitute herself, then, inasmuch as she still becomes free, she acquires her freedom through the vendor, but it is not right that any honour should be paid to him: Marcellus himself gives this opinion (Digest 6). 2. A man is understood to be called patron even if he should have suffered capitis diminutio, or his freedman should have suffered it, if it is a case where the arrogation was effected in an underhand way ; for, seeing that by the very act! of getting himself arrogated, the freedman conceals his condition, it is not the ostensible object of the proceeding that he should become ingenwus. 3. Even’* if he has been given the right to wear gold rings (jus anulorum), I should say that he ought to show respect to his patron, though he is qualified for all the functions attached to free birth. It is different where he is re-established in the position of one free by birth; the act of the Emperor makes him ingenuus. 4. A man \ who is manumitted by a corporation or a guild or a city can

1 For quo read quod. Cf. M. 2 After sed read et.

11

76 On Citation [BOOK I

cite any individual member of the corporate body; as he is no freedman of the individuals. »But he is bound to treat the municipality (res publica) with deference, and if he desires to go to law with a municipality or a corporation, he must apply for permission under the Edict, though he should intend to cite one who is appointed agent for the body [actor]. 5. The terms “children” and “parents” of the patron and patroness we must regard as including both sexes. 6. If the patron is reduced to peregrine condition by a sentence of deportation, then, in the opinion of Pomponius, he loses his privilege. But if he should be reinstated he will recover the full benefit of this Edict as well. 7. The expression “parents of the patron” confers the exemption even on adoptive parents; but only so long as the adoptive relation lasts. 8. If my son is given in adoption, he cannot be cited by my freedman; neither can my grandson, where he was born into the adoptive family. But if my son, after emancipation, adopts a son, such a grandson can be cited [by my freedman], as he is a stranger to me. 9. The word liberi (children), according to Cassius, is applied in a way corresponding to the use of the word parent, that is, even beyond a descendant in the fifth degree. 10. If a freedwoman has a child by her patron, she and her son are forbidden to cite each other. 11. But if the children of a patron should have brought a capital accusation against their father’s freedman, or have taken proceed- ings to have him judicially pronounced a slave, no honour need be shown them. 12. The pretor says:—“No one is to cite without my permission,” etc. He will give permission if the action brought against a patron or a parent is not one which involves infamy or which wounds his honour. But in every case he ought to act on cause shown; as in some cases, in the opinion of Pedius, he ought to allow a patron to be cited by his freedman, even where the action involves infamy, where, for instance, he has done the freedman some outrageous wrong, say, he scourged him. 13. The honour in question is always to be paid to the patron, even though he is concerned as a guardian, or curator, or voluntary defendant on behalf of another (defensor), or as an agent (actor). But where a guardian or curator of the patron is concerned, such a person can be cited with impunity, according to Pomponius, and this is the better opinion.

PauLus (on the Edict 4) Although the preetor does not proceed to say that he will allow penal proceedings [only] on sufficient cause shown, still, according to Labeo, his jurisdiction

L4

TIT. IV | On Citation 77

must be exercised subject to some limitation ; suppose, for example, the freedman should think better of his intention and abandon the action, or the patron, although cited, should not appear, or he should have no objection to being cited; although the language of the Edict does not admit the above construction.

Uxupranus (on the Edict 57) If a freedman should, in contravention of the preetor’s Edict, cite a son of his patron whom that patron has under his potestas ; the proper view to take is that, in the absence of the father, the son under potestas ought to get relief, and he has a good penal action in factum against the freedman ; viz. one for fifty awrez.

MopEstinus (Pandects 10) The general rule is that those persons to whom deference ought to be shown cannot be cited without the leave of the preetor.

PAPINIANUS (Responsa 1) Where a freedman is put on his trial by his patron, and, with a view to his defence, makes a number of applications to the preses of the province in his court, he is not held to be thereby citing the patron who accuses him.

PAULUS (Questions 1) A freedman presented a petition to the Emperor against his patron in which he did not conceal the fact that he was his freedman; assuming that he obtains a rescript such as he prays, is it held to follow that the penalty due under the Edict is remitted? My answer was this :—I do not think that the preetor’s Edict applies to such a case; a man who presents a petition to the Emperor or the preses is not held to be citing his patron.

THE SAME (Responsa 2) The question was asked whether a guardian could cite his own patroness without the leave of the preetor, when acting on behalf of his ward. I answered that the person in question, while acting on behalf of his ward, might go so far as to cite his own patroness without the leave of the preetor.

THE SAME (Sentences 1) Where a man has given an under- taking at the magistrate’s office that he will produce any one, he is compellable to do so. Moreover a man who has promised by enrolled assurance that he will produce any one, even though he give no undertaking at the office, is still compelled to pro- duce him’.

1 This is clearly the meaning intended ; the wording is uncertain.

18

19

20

21

22

23

24

25

78 On Citation [BOOK II

GAIus (on the Twelve Tables 1) Most writers hold that it is not lawful to cite any person from his own house ; a man’s house, they say, being his most secure shelter and retreat, so that any one who should cite him out of it Eat be held to be using violence ;

PAULUS (on the Edict 1) and, if such person is undefended and he keeps out of the way, it is clear that he suffers quite sufficient penalty by the fact that the other party is put in possession of his property. But if he makes himself accessible or he can be seen from any public place, then, according to Julianus, he can be properly cited.

GAIus (on the Twelve Tables 1) There is no doubt that a man can lawfully be cited from his housedoor, or the baths, or the theatre.

PauLus (on the Edict 1) Still, though a man who is in his house can sometimes be cited, no one ought to be dragged out of his own dwellinghouse.

Galus (the Twelve Tables 1) Again, one is not allowed to cite a girl under the age of puberty, who is subject to some one else’s potestas. 1. Where a man is cited, two cases may occur in which he must be excused from attending ; one where some one undertakes his defence in his place, and the other where, before they have come into Court, the parties agree to compromise the matter.

MARCIANUS (lnstitutions 3) When a man is freedman to several patrons in common, he is still bound to ask the preetor for leave to cite any one of such patrons in particular, or else he will incur the penalty prescribed by the Edict.

ULPIANUS (on the Edict 5) If any one contravenes the above regulations, an action is allowed against him for fifty awrez ; but this will not be given to the heir [of the patron], nor against the heir [of the freedman], nor after the lapse of a year.

MoDESTINUS (on penalties 1) If a freedman should cite a patron without getting permission under the Kdict, then, on complaint made by the patron, he either has to pay the above- mentioned penalty, viz. fifty awre2, or else he is chastised by order of the prefect of the city as failing in respect, that is, if he is ascertained to be devoid of means.

vit. Vv] Where one who is cited fails to appear 79

V.

WHERE ONE WHO IS CITED FAILS TO APPEAR ; ALSO WHERE A MAN CITES ONE WHOM, ACCORDING TO THE EDICT, HE HAS NO RIGHT TO CITE.

ULPIANUS (on the Edict 1) Where any one who is cited offers as a surety for his appearance at the trial a person who is not subject to the jurisdiction of the judge before whom he is himself cited, such a surety is not regarded as offered at all, unless he expressly renounces his privilege.

PauLus (on the Edict 1) A man who is cited on whatever ground before the pretor, or any other officer who presides at the administration of justice, is bound to attend for the purpose of having the very point ascertained whether the officer in question really has the jurisdiction or not. 1. Where one who is cited declines to attend, he will be ordered by the proper judge to pay such fine as it comes within the juris- diction of that judge to impose; but on sufficient cause shown, as allowance must be made for the man’s want of education; moreover if the plaintiff has no interest in the other party appear- ing at that precise time, the preetor remits the penalty ; for instance on the ground that the day was a holiday (dies feriatus).

ULPIANUS (on Sabinus 47) | Where aman promises to appear at a trial, but does not go on to name a penalty which he will pay in case of non-appearance, the clear rule is that an action can be brought for unliquidated damages to an amount equivalent to the plaintiff's interest ; and so says Celsus himself.

VI.

PERSONS CITED BOUND TO APPEAR OR ELSE GIVE A GUARANTEE OR AN UNDERTAKING.

Pautus (on the Edict 1) It is provided by the Edict that, when a surety is offered that a person will appear in answer to a summons, the surety so offered must be of sufficient means, regard being had to the station of the defendant, except where the surety is a near connexion of the defendant, in which case any kind of surety must be accepted ; suppose, for example, a man is offered as surety for his parent or patron,

80 Persons cited bound to appear [BOOK I

CALLISTRATUS (on the monitory Edict 1) or, again, for his patroness, or his own children, or his wife or his daughter-in-law. In these cases any kind of surety has to be accepted’, and where the plaintiff refuses to accept a surety, knowing that it is a case of a close connexion such as above mentioned, there is a good right of action for fifty awrei,

PAULUS (on the Edict 4) since in the case of persons closely connected any surety is deemed and taken to be of sufficient means.

ULPIANUS (on the Edict 58) Where a man has promised that two particular men should appear at the trial, and thereupon he produces one but not the other, he cannot be held to procure them to appear in fulfilment of his promise, seeing that one of the two was not produced.

VEL

No ONE TO RELEASE BY FORCE A MAN WHO IS CITED.

ULPIANUS (on the Edict 5) The preetor published this Edict in order that he might keep in check by fear of punishment such as forcibly release persons who are cited. 1. Indeed we read in Pomponius that where the offender is a slave, a noxal action must be given, unless the slave did the act with his owner’s knowledge ; in that case his owner must submit to the action, without being allowed the alternative of surrender for nowa. 2. Ofilius holds that this Edict will not apply where a person has been released who was never legally liable to be cited, for instance, a parent, or a patron, or one of the other persons men- tioned ; and this seems to me the sounder opinion. Certainly where it was a wrong to cite the party it was no wrong to release him.

PauLus (on the Hdict 4) Both, no doubt, contravene the Kdict, the freedman who cites his patron, and the other party who forcibly releases him; but the freedman is in the worse position, if he acts the part of plaintiff where his own wrong is just as great. The same equitable consideration applies in the case of one who was cited to a place to which he was not liable to be cited ; but here the observation may be made more strongly still that a man who has a right to decline to be sued at that place, cannot be alleged to be released with violence.

1 guivis inserend. after accipitur. M.

TIT. vit] No one to release by force ete. 81

ULPIANUS (on the Edict 5) Where a man sets free a slave who was cited, Pedius holds that the Edict does not apply, because the slave was not a person who could legally be cited. That being the case, it comes to this; there will have to be an action for production. 1. If a man should set free some one who is cited before a subordinate judge (judea pedaneus), the penalty mentioned in the Edict will not be incurred. 2. With regard to the rule laid down by the preetor in the words “release with violence” (vi), does it apply where simple force is used, or must there be malice (dolus malus) as well? Release by force is enough, though there should be no malice.

PAaULus (on the Edict 4) The word ‘eximere’ (release), so Pomponius says, is a comprehensive term. ‘Eripere’ means to take out of a man’s hands by actual seizure ; ‘eximere’ is to set free in any way whatever. Suppose for instance one should not positively seize a man, but contrive some hindrance in order to prevent him from coming to the magistrate’s court, so as to cause the regular time for bringing the action to expire, or the property at stake to be lost by lapse of time ; the party would be held to have released the person in question, though there should be no physical release. Similarly if any one, without taking a man away, detains him where he is, he is liable under the same words. 1. If a man releases some one who is cited on a vexatious pretence, there is no doubt that he is liable under the Edict. 2. The preetor says “and he is not to contrive maliciously to procure him to be released.” Of course it is possible that the thing should be done otherwise than maliciously, for instance, when there is good ground in law for a release.

ULPIANUS (on the Edict 5) If a man releases some one through the agency of a third person, he comes under these words, whether he is himself present or absent. 1. Where a man effects a forcible release, an action iz factum is allowed against him, in which the measure of damages is not the actual amount of loss suffered, but the value set by the plaintiff on the subject-matter of the [original] litigation. This rule is expressly added to make it clear that where a plaintiff has brought a vexatious action, still he can recover the damages referred to. 2. He must however show that the result of the release was that the defendant was not brought before the court. If he really was brought after all, there is no penalty, the words only apply where the act made a real difference. 3. The action is in jfactum, and, if there are more

M. J. 6

82 No one to release by force ete. [BOOK II

offenders than one, each may be sued separately, moreover the party released remains still as much liable as before. 4. Heirs have a right to bring this action only where they have an interest in doing so ; but no action is allowed against an heir, nor after the lapse of a year.

THE SAME (on the Edict 35) Where a man who has released a defendant debtor by force pays the damages, this does not extinguish the debtor's liability, as the party simply pays damages for his own act.

VIE

WHAT PERSONS RESPECTIVELY ARE COMPELLED TO GIVE A GUARANTEE OR PROMISE ON OATH OR ARE REMITTED TO A SIMPLE PROMISE.

Gatus (on the provincial Edict 5) The term satisdatio (giving a guarantee or security) arose in the same way as satisfactio. Just as people are said to give satisfaction to one with whose wish they comply, so they are said to make “satisdation” to the opposite party when they give him such security’ in respect of the subject- matter of his suit that by furnishing sureties they relieve him from all risk involved in it.

ULPIANUS (on the Edict 5) A surety who is given for the appearance of a defendant is regarded as substantial not merely by reference to his means, but by reference also to the facilities there may be for suing him. 1. If aman should give a surety for his appearance to a suit brought by any one of the class of persons legally incapable of bringing it, this giving of a surety is of no force. 2. The preetor says,—“If any one cites his parent, his patron or patroness, the children or parents of his patron or patroness, or his own children, or some one whom he has under his potestas, or his wife, or his daughter-in-law, any kind of surety for the appearance of the defendant is to be accepted.” 3. Where the praetor says “or his own children,” we must understand this to include grandchildren descended through women: and we must allow the privilege in question in the case of parents not only where they are sud juris, but equally where they are under any man’s potestas : this is in fact said by Pomponius. Moreover a son can become a surety for his father, even where he is under some one

1 Read cum...cavetur for qui...cavit. M.

TIT. vil] What persons compelled to give a guarantee 83

else’s potestas. Daughter-in-law we must take to include grand- daughter-in-law, and so on in remoter generations. 4. Where the preetor says “any kind of surety is to be accepted,” this refers to the surety’s means, it signifies, in short, even if the surety is not substantial. 5. Where the preetor allows an action against a surety who promised that some one should appear, it is given for such amount as the matter is worth ; but as for whether that means the actual loss in fact incurred, or a definite amount [an vero quanti- tatem| settled beforehand, this is a point to consider. The better opinion is that the surety is liable for the actual amount [in veram quantitatem|, unless he became surety for a specific sum’.

Galus (on the provincial Edict 1) Whether the action was for double or treble or fourfold damages, it is held that one and the same surety is liable for whatever the amount was, without further discrimination, as that is the amount which the matter is taken to be worth.

PAULUS (on the Edict 4) If a defendant who has furnished a surety for his appearance should die, the praetor ought not to order him to be produced*. Should the preetor order him to be produced, in ignorance of his death, or should the defendant die after the order is made, but before the day on which he was to be produced, no action can be allowed. Should the party on the other hand die or lose his citizenship after the day on which he was to be produced, an action may be brought with good effect.

GAIUS (on the provincial Edict 1) But if a man is surety for one against whom judgment has already been given, and the latter, being in that position, dies, or loses Roman citizenship, this will not prevent an action being properly brought against the surety. 1. Where a plaintiff declines to accept some surety offered for the appearance of the other party, though he is beyond all doubt a substantial person, having regard to the condition of the defendant, or, if there was any doubt, is shown to be such, an action for ¢njuria can be brought against him, as it is certainly no every day ijuria that a man who offers a thoroughly sufficient surety should be brought up summarily in person. Indeed the surety himself whom the party declined to accept may take pro- ceedings as for an «exjuria done to himself.

PAULUS (on the Edict 12) If in any case there is some flaw in the undertaking or the guarantee given, it is held that there is no undertaking at all.

1 The passage must be corrupt. 2 Read exhiberi for exhibere. Cf. M.

6—2

84 What persons compelled to give a guarantee | BOOK 1

ULPIANUS (on the Edict 14) If, without the sufficiency of the surety being denied, it should be alleged that he has a right to object to the jurisdiction, and the plaintiff should be apprehensive that he will raise a plea founded on the alleged right,—let us see how the law stands. As to this point,—so we are informed by Pomponius in his book of Epistles, by Marcellus (Dig. 3) and by Papinianus (Questions 3)—the Divine Pius laid down, in a rescript addressed to Cornelius Proculus, that a plaintiff was quite justified in refusing to accept such a surety, but that, if no other surety can be procured, the one who is offered must make a declaration that, if he is sued, he will not avail himself of his privilege. 1. Where the finding of a surety is obligatory, but the defendant has a difficulty in finding one on the spot where he is sued ; then, if he offer to find one in some other city of the same province, his proposal may be entertained. But where the defendant offers a surety without being obliged to do so, he is not allowed to change the place ; a man has no claim to consideration of this kind where he of his own choice put himself under the necessity of finding a surety. 2. If guarantee for appearance has not yet been furnished, where the trial relates to some moveable, and the person who is required to find a surety is not thought trustworthy, the property should be deposited at the Office [Ofictum], if that is agreeable to the judge, until either a surety is found or else the case is concluded.

PAULUS (on the Edict 14) | Commonly the parties to the action agree as to the mention of a day in the stipulation. In default of such agreement, Pedius holds that the promisee may choose the day, subject to some limitation as to the time ; this point is to be decided by the judge. 1. A man who offers a woman as a person to guarantee his appearance, is not held to find a surety at all; indeed, soldiers and persons under twenty-five are not to be approved of, except where such persons are sureties in their own behalf, as, for example, where they are sureties for their own agents. Some indeed hold that where an action is brought to recover dotal land by a husband, the wife may be surety in her own behalf. 2. Ifa person who before issue was joined was surety that the judgment would be complied with [yudicatum solvi| is found to be a slave, the plaintiff has a claim to relief, and a fresh undertaking must be made. Relief must also be given to one under twenty-five, and perhaps to a woman, on the ground of inexperience. 3. If one who is surety that the judgment will be

vit. vil] What persons compelled to give a guarantee 85

complied with becomes heir to the person to whom the assurance was given, or vice versd, fresh assurance will have to be given. 4. A guardian or curator, when he has to undertake that property shall be preserved for the ward, may have an order that he shall come to the municipal town, because the guarantee is compulsory ; the same rule holds as to a guarantee for a man giving up to the bare proprietor property in which a usufruct has been created ; and a legatee is in the same position with reference to his giving security that, if the inheritance should be recovered by action [from the present assumed heir], he will give up any legacy paid him, including anything which, having regard to the lew Falcidia, was paid in excess ; moreover, an heir has a right to be heard on an application to be sent to the municipal town for the purpose of giving security for payment of legacies. It is true that if a legatee has once been put in possession of the property bequeathed him in a case where it was the heir’s own fault that he omitted to find a surety, and the heir thereupon requests that the legatee may give up possession, and declares that he is ready to find a surety in the municipal town, he will not be entitled to permission to do so. But it is a different case where the legatee is put in possession through no negligence or wilful misconduct of the heir. 5. A man [who desires to give security in the municipium] is ordered to deny on oath any vexatious intention, for fear lest he should really be seeking to annoy his opponent, and should have had that main object in calling upon him to come to the municipium, when perhaps he is able to find a surety in Rome; still some persons are excused the oath referred to in disavowal of vexatious intention ; for instance, parents and patrons. A man who gets the order authorizing him to go to a munictpium is bound to swear as follows :—that he is unable to find a surety in Rome, but that he can find one at the place to which he requests to be sent, and that he does not make the application with any vexatious intent. But he is not compellable to swear as follows :—that he cannot find a surety in any other place than the one named :—because if, though unable to give security in Rome, he is able to give it in any one of several other places, this would amount to compelling him to commit perjury. 6. The leave in question will only be obtained where there is shown to be lawful cause. Suppose, for instance, the defendant was in the municipium on a previous occasion, and then refused to find any surety; in such a case the permission ought not to be given him, as it was his own fault that he did not find a surety at the place to which he now desires to go.

10

11

12

13

14

86 What persons compelled to give a guarantee [BOOK 11

GAIUS (on the provincial Edict 5) Where an arbitrator is appointed to try the sufficiency of proposed sureties, if his decision appears unjust, relatively to either party, there is an appeal allowed from him, just as there is from a regular judge.

PAULUS (on the Edict 75)’ If sureties are approved of by the arbitrator, they are to be deemed substantial persons ; seeing that a complaint may be made before the proper judge ; who can, on sufficient cause shown, reject sureties approved by the arbitrator, or, it may be, approve those rejected. 1. Much more may we say that, where a man of his own freewill accepted sureties that were offered him, he is bound to be content with them. If, however, in the meantime some notable calamity should overtake the sureties, or, say, severe loss of means, then, on sufficient cause shown, sureties must be found over again.

ULPIAN (on the Edict 75) Julianus has the following: having no mandate as yet from me to bring an action to recover land, you still intend to bring the action, and you accordingly take the requisite guarantee, after which I give you the mandate and you institute proceedings in pursuance of it; in this case the sureties are bound.

THE SAME (on the Edict 77) All writers are agreed that where a man is appointed heir on condition, then, if he is in possession of the inheritance while the condition is pending, he must give an undertaking to the substitutional heir to hand over the inheritance, after which, if the condition fails, the substitute, assuming that he chooses to enter as heir, can bring the hereditatis petitio, and, if he succeeds therein, the undertaking can be sued on. Very often indeed the preetor himself, before the condition comes to pass, and before the time has arrived for the hereditates petitio, will, on due cause shown, order the stipulation to be made.

PAULUS (on the Edict 75) And if there are several substi- tutes, an undertaking must be given to each separately.

THE SAME (fesponsa 2) A son under potestas undertakes the defence of his father, who is absent: I wish to know whether he is bound to give security by sureties that the judgment will be obeyed. Paulus replied that any one who undertakes to defend an action on behalf of an absent person, even if he is a son or a father, is bound, according to the terms of the Edict, to give such security to the person who is bringing it.

1 On division of sections at this point cf. M.

16

Tit. vit] What persons compelled to give a guarantee 87

MACER (on appeals 1) It must be borne in mind that defendants in possession of immoveable property are not com- pellable to find sureties. 1. By possessor is to be understood a person who possesses land in the country or a town, whether solely or in respect of a share. We may add that a man is considered possessor just as much when he has an ager vectigalis, that is, an emphyteutic estate. Furthermore, a man must be regarded as possessor when he has the bare owner- ship. But where he has only the usufruct, we have Ulpian’s authority that he is not possessor. 2. A creditor who has taken a thing in pledge is not ‘possessor, although he should have got possession, whether the thing has been delivered to him or he has allowed it to be held on precariwm by the debtor. 3. If land is given by way of dos, both husband and wife are, in regard of their actual possession of such land, considered possessors. 4. A man who has a right of action iz personam for the delivery of land is in a different legal position. 5. Guardians are treated like possessors, whether their wards are in possession or they are so themselves ; indeed, the construction is the same even where only one of the guardians is in possession. 6. If you bring an action against me to recover land which I possess, and judgment being given in your favour, I thereupon appeal, am I still possessor of the land? The proper view to hold is that I am possessor, as I have still got possession; and it makes no difference that my possession can be taken away from me by course of law. 7. When the question arises whether a man is possessor, the time to be considered [for the present purpose] is that at which the under- taking is given; for just as a man who sells the possession after giving the undertaking is in no worse position, so one who takes possession after giving it is in no better position.

Pautus (on the Edict 6) Where a man promises on oath to appear at the trial, he is not held to commit perjury if he fails to appear on some recognized ground.

88 Nature of the undertaking given [BOOK

IX.

NATURE OF THE UNDERTAKING GIVEN IN THE CASE OF A NOXAL ACTION.

ULPIANUS (on the Edict 7) If a man has promised that some slave who is the subject of a noxal action shall be produced at the trial, he must, so the preetor says, be ready to produce’ him in the same legal plight [causa] in which he is at the time while joinder of issue is still pending. 1. What is meant by the expression “the same legal plight” is a point to consider; but the true view, | should say, is that a man must be held to present the slave in the same plight where he does not put the plaintiff in a worse legal position with reference to the action which he brings. Should the slave in the meantime cease to be the pro- misor’s property, or the plaintiff’s right of action be lost, then, according to Labeo, the slave cannot be held to be presented in the same legal plight ; the same may be said where a plaintiff who was in as good a position (as the defendant) for purposes of litiga- tion comes to be in a worse position by some change of place or of party. Thus where the slave is sold to some one who cannot be sued in the same court as the promisor could, or is transferred to a man who is a more formidable antagonist, the same authority considers on the whole that he cannot be said to be produced in court in the same legal plight. Again, if the slave should in the meantime be surrendered for noxa, Ofilius holds that he cannot be produced in the same plight, as, in his opinion, surrender for noxa does away with all noxal actions on the part of other persons.

PavuLus (on the Edict 6) However, the present practice is different ; when a slave is surrendered for noxva he is not dis- charged from all antecedent legal predicaments ; in fact nowa still follows the guilty subject just as much as if he had been sold. 1. If some one is in a position to bring a noxal action in respect of a slave, and the slave is absent, then, according to Vindius, if the owner does not deny that the slave is under his control, he can be compelled either to promise that he shall be produced in court, or to join issue, or else, if he does not choose to undertake the defence, he must give an undertaking that he will produce the slave as soon as he is able: but, if he denies falsely that he is

1 debere inserend. after exhibere. M.

TT LX | in the case of a noxal action 89

under his control, he must take up the case without the alternative of surrender for noxa. Julianus says the same, even where the owner contrives fraudulently that the slave shall not be under his control. But, if the slave is present and the owner is absent, and nobody defends the slave, the praetor will order that the plaintiff may carry the slave off; at the same time the owner will be allowed, on cause shown, to defend the case afterwards, so Pomponius and Vindius say, so as to prevent him from losing by his absence ; consequently the plaintiff himself can get an order giving him back his right of action, which he was deprived of by the fact that when the slave was taken off he became his (the plaintiff's) property.

ULPIANUS (on the Edict 7) If a noxal action is brought against one who has a usufruct in a slave and he declines to defend him, the przetor will not allow an action at law on his part to recover the usufruct.

Galus (on the provincial Edict 6) If a noxal action is brought against one of two co-owners, is the defendant bound to find a surety in respect of the share of his fellow owner? Sabinus says he is not, because, being obliged to take up the defence for the whole claim, he is in a way defending the entire man as if he were his own property, and he will not be listened to if he offers to defend in respect of a share only.

Uupianus (on Sabinus 47) A man promises to produce a slave in court in the same plight, but the slave gets his liberty and then appears ; here, if the question to be tried concerns this particular man in connexion with capital proceedings or on the ground of injuria which he is charged with committing, this is not a good appearance ; as tone kind of penalty is applied with a freeman by imposition of, it may be, pecuniary damages, and another is used with a slave by inflicting severe punishment, and, in the case of injwria, the slave is beaten by way of satisfaction +*. But, so far as other grounds of noxal proceedings are concerned, the former slave may in fact be held to have got into a better plight [for the plaintiff].

Pauuus (on Sabinus 11) However, if a promise was given that a statu liber should appear, he is held to appear in the same plight though he should be a free man when he appears, as the chance of liberty was an element in his legal position originally.

1 Transpose servo...satisfit and libero...pecuniaria.

90 On one who contrives [BOOK II

X.

ON ONE WHO CONTRIVES THAT A DEFENDANT SHALL NOT APPEAR.

ULPIANUS (on the Edict 7) The przetor held it to be thoroughly just to put a check on the ill practice (dolus) of such as take measures to prevent a man from appearing to a trial. 1. A man is held to have acted with malice |dolus malus], not only where he kept the defendant back with his own hands or by the instrumentality of persons in his service, but also where he engaged others to keep him back or get him out of the way so | that he should not appear, whether such persons were aware or not of his design. 2. According to the meaning put on the expression ‘dolus malus, if any one should address words of evil omen to some one who is on his way to the court which should oblige him to give up going to the trial, the party would be liable under this Edict: though indeed some hold that the other would have himself to blame for being so easily imposed on. 3. If the defendant fails to appear, owing to the contrivance (dolus) of the plaintiff, such defendant will not have any right of action against the plaintiff in virtue of this Edict, as he may well be content with an exceptio, supposing he should, in consequence of not appearing at the trial, be sued for the penalty on his formal undertaking to appear. The case is different if he should be hindered by some third person ; then he would have a right to bring the action in question. 4. If several are guilty of contrivance, all are liable ; but if one of them pays the penalty, the rest are discharged, as the plaintiff has no further interest. 5. All are agreed that in such a case a noxal action must be brought in respect of a slave. 6. The action is allowed equally to the heir of the party wronged, though only for a year: but against the heir of the wrongdoer I should say an action will only be so far allowed as to prevent such heir from making any gain through the contrivance of the deceased.

PAULUS (on the Edict 6) If a slave of the plaintiff, with the knowledge of his owner, and without such owner attempting to prevent him, though able to do so, should use contrivance so as to prevent me from appearing to the action, then, according to Ofilius, I shall have a right of eaceptio to an action by the owner, lest the latter should profit by the ill contrivance of his slave.

ATT (Xi that a defendant shall not appear 91

But if the slave should do this without the consent of the owner, Sabinus holds that I ought to be allowed a noxal action ; the act of the slave, he says, ought not to prejudice’ the owner except so far as to cause him to lose the slave, seeing that he did no wrong himself.

JULIANUS (Digest 2) In pursuance of this Edict, where a man has maliciously contrived that some one who was cited should not appear to the action, there is a good right of action in factum against him for an amount equivalent to the interest the plaintiff had in the defendant appearing. In this action the inquiry will embrace the question what loss the plaintiff suffered in consequence of the non-appearance ; for in- stance, where the defendant in the meantime acquired ownership in the subject-matter of the suit by effluxion of time or was discharged from liability to an action. 1. No doubt, if the party who contrived that the defendant should not appear is insolvent, it is only just that a fresh action should be allowed against the original defendant himself, lest he should make gain and the plaintiff suffer loss by another man’s ill practice. 2. If the promisee and the promisor in the stipulation are both prevented from appearing in the action, one by the contrivance of Titius and the other by that of Meevius, each may bring an action in factum against the person by whose contrivance he was hin- dered. 3. If the promisee is prevented from appearing by the contrivance of the promisor and the promisor by that of the promisee, the praetor ought not to give any relief to either of them; the two cases of dolus may be set off one against the other. 4, If I stipulate with the surety for fifty in case the defendant fails to appear to the action, where the amount that I am suing for is a hundred, and the defendant is prevented from appearing by the ill contrivance of Sempronius, I can get a hundred from Sempronius. This is in fact what my interest is held to amount to, because, if the defendant had appeared at the trial, I could have proceeded on a valid right of action which I had against him, —or, say, his heir,—for a hundred, although the amount which the surety engaged to pay were not so much.

92 Where a man fails [BOOK II

XI.

WHERE A MAN FAILS TO OBSERVE AN UNDERTAKING TO APPEAR TO AN ACTION.

Galus (on the provincial Edict 1) [With regard to the time within which appearance is to be made] the preetor lays down that one day should be given for every twenty thousand paces of distance, in addition to the day on which the undertaking is made, and the day on which the party is to appear. Certainly where the time is calculated with reference to the distance on the above scale, there is no hardship inflicted on either of the litigating parties.

ULPIANUS (on the provincial Edict 74) The law does not require that a defendant should appear to the action where the matter in connexion with which he promised to appear is com- promised ; but this is only so where the compromise is made before the day on which the party was bound to appear; at the same time, if it is made afterwards, an action on the promise ought to be met by an exceptio of dolus: indeed, who would ever take any trouble about the promise of a penalty when the matter has been compromised? The fact is any one would suppose that the mere exceptio of ‘compromise made’ would be a good plea, on the ground that the compromise included the liability to penalty itself, unless the parties expressly agreed otherwise. 1. If a man fails to appear to an action in accordance with his promise, without any ill contrivance of his own, owing to some hindrance connected with the discharge of a municipal office, it is quite right that he should be allowed an exceptio. 2. On the same principle he ought also to be relieved if he was not able to present himself at the trial because he was required elsewhere as a witness. 3. Where a man promises to appear to an action, and is unable to do so because he is prevented by ill-health or a storm or the strength of the current in a river, he has a good eaxceptio; which is very reasonable, as such a promise requires personal attendance, and how was it possible for a man to appear who was hindered by bad-health (ete.) ? For this reason even the Twelve Tables lay down that if the judge or either of the litigating parties should be hindered by a serious illness, the day of the trial is to be put off. 4. If a woman fail to appear, not on the ground of ill-health, but because she is expecting her confinement, according to Labeo, she ought to be allowed an exceptio: but if she keeps her bed after the birth of the child, it

PIT; Oi to observe an undertaking 93

ought to be shown that she is prevented by what amounts to ill- health. . 5. A similar rule holds where a defendant becomes insane; a man who is hindered by insanity is hindered by ill-health. 6. With regard to the above statement that a man is relieved even where his failure to appear is owing to a tempest or the force of a current, we must understand the word tempest to apply equally whether it is by land or sea; it is, in short, such a tempest as prevents either a land journey or navigation, as the case may be. 7. The force of a current does not imply a tempest; but the expres- sion applies as well where the breadth of a river constitutes the impediment, whether the bridge is broken down or the ferry-boat is not to be found. 8. Suppose, however, a man had had it in his power to avoid encountering a tempest or a strong stream by starting earlier or making the voyage at a suitable time, but he created his own difficulty, are we to say that he will get nothing by an eaceptio? This point is one to be decided on cause shown. The rule cannot be? laid down so strictly on the one hand that he can be asked why he did? not set out a long time before the day which was mentioned in the promise; nor on the other hand can he be allowed to excuse himself on the ground of tempest or the force of a stream if his delay was at all his own fault. Suppose, for instance, a man who was at Rome at the very time when he made the promise to appear at the trial should, without any urgent need, have gone off to a provincial town to amuse himself: how will he be the better for such matter of exceptio? or how if there was a storm at sea, but the party was able to come by land ; or, in the case of the stream, to make a circuit so as to avoid it? Here again we must say that the exceptio will not be open to him as a matter of course ; unless indeed the want? of time was such that he could not accomplish the journey by land or avoid the stream in the respective cases. Of course, if the stream overflowed to such an extent as to flood the whole place where he had to appear, or some unforeseen disaster wrecked the place, or made it dangerous to approach it, then too the eaceptio must be allowed him on principles of fairness and justice. 9. In the same way an exceptio is allowed to a defendant who desired to come to the trial, but was detained by a magistrate, such detention being without any ill contrivance (dolus) of his own; if he took steps to this very end, or gave occasion for it, the exceptio will not serve his turn, but his

For sit read est. For est read sit.

1 2 3 After nist read temporis. M.

94 Where a man fails [BOOK II

own dolus will prejudice him, though he will not be prejudiced by dolus on the part of any one else, by whose contrivance he was kept back. Still, if he is kept back by a private person he will get nothing at all by an exceptio founded on the circumstance ;

PauLus (on the Edict 69) but he is allowed an action against the person who kept him back for an amount corresponding to the loss it occasions him (¢d quod interest).

ULPIANUS (on the Edict 74) Again, if a man was not able to appear at a trial because he had already been condemned on a capital charge, in that case he is excused, and with reason. By condemnation on a capital charge we must understand a case where a man is punished by death or exile. It will perhaps be said—what is the use of this exceptio to a man who is condemned ? But the answer is that it is required by his sureties; it is also of use in case he has gone into exile without losing his citizenship, as then the exceptio will be available for any one who takes up his defence. 1. One point must be remembered, that a man who failed to appear because he was arraigned on a capital charge is in that legal predicament that he cannot avail himself of the exceptio ; the case in which it is allowed is where he is condemned. It is true that if the reason why he failed to appear was that he was pre- vented by imprisonment or military arrest, in that case his position is one in which he can have the exceptio. 2. We may add that if a man fails to come because he is hindered by a funeral in his family, he ought to be allowed the exceptio. 3. Again, if a man is in bondage in the hands of enemies, and for that reason fails to appear, he must have the benefit of the eaceptio. 4. The question has been raised whether an agreement can be made to the effect that no exceptio shall be pleaded at all, where a man breaks an engagement which was intended to secure that he would appear to an action ; but Atilicinus holds that such an agreement is void. For my own part, I should say that the agreement is valid, provided express mention is made of the particular grounds of exceptio, and the promisor undertook voluntarily not to rely on them. 5. Again, this question is asked : suppose a man who was not bound to find sureties for appearing to an action nevertheless promises with sureties, will his sureties be allowed an exceptio? I should say that the essential question is whether such a promise with sureties was given owing to a mistake, or in pursuance of an agreement ; if it was owing to a mistake, the sureties ought to be allowed the exceptio ; if in pursuance of an agreement, they certainly ought not.

TIT. XI] to observe an undertaking 95

Julianus himself says :—“if a man by way of assurance that he will appear to an action promises through ignorance a larger sum than is laid down, an exceptio ought to be allowed”; but if a promise is made of the same sum in pursuance of an agreement, then, says Julianus, the exceptio will be neutralized by a replicatio of “terms agreed upon.”

PavuLus (on the Edict 69) There are two co-promisees, and the debtor promises one of them under a penalty that he will appear to an action, but the other hinders him from doing so. In this case no exceptio will be allowed in bar of an action by the first, unless the two are partners; but it will then, for fear lest the result of the fact of partnership should be that the one [who does the wrong] profits by his own ill-practice. 1. Again, if there are two co-promisors, and one, on being sued, declines to appear at the trial, in disregard of the promise he made to secure his appearance, whereupon the plaintiff demands from one the thing which is the subject of the litigation, and the penaity for non-appearance from the other; the action for the penalty will be barred by an exceptvo. 2. On the same principle if a promise is made by a father to the effect that he will appear at the trial, where an action is brought on his son’s contract, and, after that, the plaintiff sues the son on the contract, he will be met with an exceptio if he then sues the father on his promise: and there is a corresponding rule in the converse case if the son promises to appear and the plaintiff then sues the father in an action de peculvo.

Gaius (on the Twelve Tables 1) Where a man finds a surety and then fails to appear, for the reason that he is absent on public service, it is not just that the surety should be bound on another man’s behalf, so as to have to appear to a suit where the other himself is free not to appear.

PAuULuSs (on the Edict 69) If a man promises that a slave, or any one who is in the potestas of another, shall be produced to meet an action, he has every exceptio that he would have had, if he had been surety for some one who was free or sui juris, except an exceptio alleging that the slave was absent on the public service, as a slave cannot be absent on public service. Setting aside this exception, all the others, being of general application, are available both in the case of a free man and in that of a slave ;

Gatus (on the provincial Edict 29) and if, in three or five or more days after the defendant was to have appeared, according to his promise, he gives the plaintiff an opportunity of proceeding

10

96 Where a man fails [BOOK II

against him, and the latter’s legal position is none the worse for the defendant’s default, it follows that he must be held to have a good defence by way of exceptio.

ULPIANUS (0n the Edict 77) If a slave promises to appear to an action, the stipulation cannot be sued on either against the slave or his sureties. 1. If an engagement is made by one stipulation in respect of several slaves to the effect that they shall all be produced to meet an action, the whole penalty is incurred, according to Labeo, though only one should fail to appear, because it is a fact that they were not all produced; still, should a pro- portionate penalty be offered for the one slave, Labeo holds that if an action is brought on the stipulation, the defendant will have an exceptio doli.

PavuLus (on Plautius 1) If 1 promised that a particular man should appear to an action who is alleged to be already dis- charged from liability by lapse of time’, an action must be allowed against me to call upon me either to produce this man or else to defend the action on his behalf, in order that an inquiry may be made into the facts. 1. A slave for whose production a promise had been made died before the day by the ill-contrivance of the promisor: it is in accordance with ascertained practice that the penalty cannot be demanded before the day arrives; as the whole stipulation is held to be referred to that day. 2. A man who desired to bring an action for injuria, stipulated that the other party should appear to the action, but, fulfilment of the promise having become due, the promisee died before joinder of issue*. It was held that his heir had no right to an action on the stipulation, because stipulations of that kind were only had as subsidiary to the main action, and an action for ¢njurta is not open to the heir of the party wronged. In short, although the benefit of a stipulation such as named, which is made for securing the appearance of some one to an action, does pass to the heir, still in this case the action ought not to be allowed ; the deceased himself, if he had chosen to drop the action for juria, and yet to sue on the stipulation, would not have been allowed to do so. A similar rule, it was held, would apply if I proposed to bring an action for tnjuria and the defendant died after the time had arrived for suing on the stipula- tion, as I have no right of action on stipulation against his heir; and

1 guia...tenebatur delend. M. 2 Put ante l. c. after commissa stipulatione. M.

11

\4

TIT. XI] to observe an undertaking 97

with this Julianus agrees. Accordingly it is equally true that, if sureties were given, no action will be allowed against them after the death of the principal. Pomponius says the same, provided the death does not take place a long time after, because, if the deceased had appeared, the plaintiff might have carried the suit as far as joinder of issue.

ULPIANUS (on Sabinus 47) If a man promises that anyone shall appear to an action, he ought to procure that he appears in the same legal position (causa). To procure him to appear in the same position is to make him so appear that the plaintiff is not in a worse situation for carrying on proceedings, although he may find it more difficult to get the redress which he demands. For even if there should be greater difficulty in this last point, still the rule is that the promisor is held [in such a case] to have procured the party to appear in the same position; even if he should have contracted a fresh debt or have lost his money, he is still held to appear in the same position, from which it follows that, even where a man appears after he has become a judgment debtor to someone else, he is held to appear in the same legal position.

PauLus (on Sabinus 11) But where a man is enjoying some fresh special immunity (novum privilegium), he cannot be held to appear in the same position. 1. One thing must be borne in mind, that any estimate of the amount of the plaintiff’s interest must be made with reference to the day on which the defendant was bound to appear, not to the day when the proceedings com- mence, although by that day the plaintiff should have ceased to have any interest.

JULIANUS (Digest 55) If at any time a slave should, as if he were proceeding to litigate on his own account, either stipulate with another for appearance at the trial or make a promise to appear himself, the stipulation confers no right of action, nor are the sureties bound, as a slave cannot be either defendant or plaintiff in an action.

NERATIUS (Parchments 2) If a man stipulates as procwrator for another that the promisor shall simply procure the appearance of whoever it is that is the subject of the engagement, but does not go on to stipulate for a penalty in case that person should not appear, such a stipulation can hardly be said to be of any value at all, because the procurator, so far as he is himself personally concerned, has no interest in the party’s appearing. As however he is acting on someone else’s behalf in making the stipulation, it.

M. J. i

15

98 Where a man fails to observe an undertaking [BooK 1

may very well be argued that the person whose interest ought to be considered in the matter is not the procurator but the principal on whose behalf he acts, so that, if the defendant fails to appear, there should be payable to the procurator, in pursuance of the stipulation, an amount equivalent to the interest which the prin- cipal in the case had in the party appearing. The same rule would apply, indeed it would apply still more strongly, if the procurator should have stipulated in such words as these “whatever is adequate compensation (quanti ea res erit),’ so long as we understand this form of words to relate not to the procwrator’s own concern in the matter, but to that of the principal.

PAPINIANUS (Questions 2) If a guardian promises to appear to an action and does not observe his promise, and in the meantime the ward becomes of full age, or dies, or even is made to renounce an inheritance [on which the action was founded], no action will be allowed on the stipulation. Indeed, if an action had been brought on the main question, and judgment therein given against the guardian, and then any one of the above events were to happen, it is established law that no action on the judgment would be allowable against the guardian.

XIi. ON FEAST-DAYS, ADJOURNMENTS, AND DIFFERENT SEASONS.

ULPIANUS (on all the Courts 4) It is set forth in an address of the Divine Marcus that no one is to compel his opponent to attend to stand a trial at the season of harvest or vintage, as men who are engaged in agricultural matters ought not to be compelled to come to the forum. 1. If however the preetor, through ignorance or stupidity, should persist in summoning such persons, and they choose to come, then, if he delivers judgment in the case, they being there present and voluntary parties to the action, the judgment will be good in law, although the magistrate who ordered them to attend were wrong in doing so; should they however throughout keep away, and the praetor pronounce judgment in spite of their absence, it follows from the above that we must hold the judgment to be of no validity, as the law cannot be set aside by the act of the preetor; accordingly the decision will, without any appeal, be held of no account. 2. Certain circumstances however there are in which there is an exception to the rule, in

TIT. XII] On feast-days, adjournments, ete. 99

the case of which persons may be compelled to come before the preetor, even at a time when harvest and vintage are going on; for instance, where the subject-matter of the suit would be lost by lapse of time, that is to say where lapse of time would take away the right of action. No doubt whenever the matter is pressing, persons are compellable to come before the praetor, but they can only be compelled to attend so far as to join issue, and this is set forth in the very words of the address: indeed, if either party should after joinder of issue decline to proceed with the action, the address allows him to have the case adjourned.

THE SAME (on the Edict 5) The Divine Marcus enacted, reciting the above address in the senate, that the przetor might be applied to in some further cases, even on holidays: for instance, for the appointment of guardians or curators; to admonish persons who neglected their duties; to hear excuses; to order alimentary provisions ; to ascertain persons’ ages; for orders that possession might be taken on behalf of unborn children (ventris nomine), or for the sake of preserving property, or by way of security for the payment of legacies or jfidet-commissa, or in cases of damnum infectum ; also for orders for discovery of testaments; for the appointment of curators of the property of persons as to whom it is uncertain whether there will be an heir to succeed them or not; for orders for the maintenance of children, parents, or patrons, or for making entry on inheritances suspected to be insolvent, or for ascertaining by ocular proof the extent of an aggravated injuria, or ' executing fide-commissary manumissions.

THE SAME (on the Edict 2) Again, where property is likely to be lost by lapse of time or by death, the practice is for justice to be administered even in the season of harvest and vintage. The loss to be feared may be by death, as where the action is for theft; mischief (damnum injuria), or aggravated injuria; or in cases where any one is alleged to have committed robbery at a fire, or the fall of a house, or a shipwreck, or after violent capture of a boat or a ship; and similar cases. The same holds where the object of the proceedings would be lost by lapse of time, or the period within which an action may be brought has nearly expired. i. Moreover inquiries as to whether a man is free or a slave can be heard to the end at all times of the year. 2. Similarly justice will be administered at all times in a case against a man who accepts

1 After vel ins, de, and for libertas read libertate. Cf. M. 7—2

§

100 On feast-days, adjournments, [BooK 1

anything as the price of market-day feasts (nundinarum nomine) contrary to public policy,

PAULUS (on the Edict 1) The preses of a province usually lays down what are to be the days’ of harvest and vintage in accordance with the custom of the particular locality.

ULPIANUS (on the Edict 62) On the last day of December the magistrates are not accustomed to administer justice, or even to hear any applications at all.

THE SAME (on the Edict 77) With regard to judgment being given on a holiday, it is laid down by statute that there is to be no trial had on such a day except by consent of the parties, and that if any judgment is given in contravention of this rule, no one is bound to do any act or make any payment in pursuance of such judgment, and no officer in whose court any application is made in the matter is to compel obedience to the judgment.

THE SAME (on the office of consul 1) It is no doubt set down in the address of the Divine Marcus that an order giving further time for the production of documents is not to be had more than once; at the same time, for the convenience of litigating parties, on cause shown, a second order for further time is commonly granted, whether the documents are in the same or a different province, subject to regulations depending on situation ; and this is especially done in the case of some unforeseen occurrence. The following point is a fair matter for consideration; whether, where a deceased person got an order for further time for production of documents, similar leave should be given to his successor also, or are we to say that, leave having been once given, no further extension ought to be allowed? But the better opinion is that on cause shown leave should be given to the successor as well.

PauLus (on Sabinus 13) According to the Roman custom the day begins at midnight and ends at the middle of the next night. Consequently, whatever was done during those four-and-twenty hours, that is two half nights and an intervening period of daylight, is treated exactly as if it had been done at any hour of daylight.

ULPIANUS (on the office of proconsul 7) The Divine Trajan laid down in a rescript to Minicius Natalis that holidays occasion cessation of judicial business only, but matters pertaining to military discipline must be carried on even on holidays; and this last will include inspection of prisoners.

1 Before tempus del. causa, M.

TIT. XII] and different seasons 101

LO PAauLus (Sentences 5) In all pecuniary causes only one adjournment can be allowed in each separate case; in capital cases three adjournments may be given to the accused and two to the accuser; but, on both sides, only on cause shown.

XIII.

ON STATEMENT OF PARTICULARS AND DISCOVERY OF DOCUMENTS, ETC.

1 ULPIANUS (on the Edict 4) Whatever action a man desires to bring he is bound to give a statement of the nature of it; it is perfectly just that a man who is going to bring an action should state the nature of the particular action, so that the defendant may thereupon know whether he ought to give way or to maintain the contest, and, in case he thinks proper to maintain it, may not address himself to the matter without being sufficiently equipped for carrying it on by being acquainted with the kind of action which is being brought against him. 1. The word ‘edere’ (to state etc.) includes also enabling the defendant to take a copy, or expressing the whole matter in a written statement (libellus), and handing it to him; or dictating it. Labeo adds that a man states the nature of his action when he takes his opponent up to the pretor’s album and points out the form which he is going to dictate; or he may do it by mentioning the form which he wishes to use. 2. These statements should always be made without day and consul, lest, if these are given, some document should be concocted and drawn with an earlier date. But the preetor meant to bar the day and consul which give the date at which an instrument was executed, not that at which, in accordance with its terms, payment was to be made; as the day of payment is practically the most important thing in a stipulation. But when accounts are produced, the day and consul should be given, as a credit and debit account cannot be set out to any purpose unless day and consul are given. 3. Everything ought to be discovered which the party means to produce before the judge; but the rule does not go so far as to compel a man to produce documents which he is not going to use. 4. A man is not held to make discovery of a stipulation when he does not discover the whole of it. 5. Persons who fail to make proper discovery, owing to some blunder caused

102 On statement of particulars, [BOOK II

by age, or want of education, or by sex, or any other sufficient cause, will be relieved.

PAULUS (on the Edict 3) In an action for a legacy, the pretor does not require the precise words of the testament to be given [by the plaintiff], the reason of which perhaps is that the heir commonly has a copy of the testament.

MAURICIANUS (on penalties 2) The senate decreed that no person against whom an action is brought on behalf of the jfiscus should be compelled to discover to the informant any other docu- ments than such as relate to the case in connexion with which the applicant declared himself to be informant.

ULPIANUS (0n the Edict 4) The preetor says :—A man who keeps a banker’s table is bound to produce [to a customer] the account in which he is concerned, adding day and consul. 1. This Edict is founded on a thoroughly just principle ; the banker makes up the accounts of every separate customer, consequently it is only right that books which he kept for me and’ documents which might almost be said to belong to me should be produced for my inspec- tion. 2. The above words comprehend the case of the banker being one under patria potestas, so that even a person in that position is compelled to produce accounts ; whether his father is bound too is a question. Labeo says that the father is not bound, unless the banking business is being carried on with his knowledge ; but Sabinus very properly laid down that this liability must be admitted where the son accounts to his father for his gains. 3. If, on the other hand, the business is carried on by a slave,—which it may be,—then, says Labeo, if the slave carries it on with his owner’s consent, the owner can be compelled to produce accounts, and an action is allowed against him, just as much as if he carried on the business himself. But if the slave acted without his owner’s knowledge, it is enough for the owner to swear that he has not got the accounts asked for. If the slave carries on the banking business with his peculiwm, the owner is liable de peculio or de in rem verso; but if the owner has got the account and declines to produce it, he is liable for the whole. 4, Even a man who has ceased to carry on the business of banker is compellable to produce documents. 5. As to place, a man is compellable to produce at the spot where he carried on the busi- ness ; this is distinctly laid down. In fact, if he has the books relating to the banking business in one province, and the manage-

1 For meuwm read meumque. Cf. M.

TIT. XIII] and discovery of documents 103

ment was in another, I should say he can be compelled to make discovery at the place where he carried the business on; he was in the wrong to begin with in taking the books away somewhere else ; and if he carries on his business in one place and is called upon to disclose in another, he is by no means compellable to do it: unless you desire copies at the spot where you make the application ; of course at your own expense :

PAULUS (on the Edict 3) and in this case he must have time allowed him for bringing the accounts to the place.

ULPIANUS (on the Edict 4) Should any banker, as often happens, have got his books at his country-house or in a store- house, he must either take you to the place or else give you a copy of the accounts. 1. The successors to the banker’s estate are equally compellable to produce the account. If there are several heirs, and one has got the account, he alone is compellable to produce it. If all have accounts, and one produces, all the others can be compelled to produce too; as the one who produced might be some obscure person of no consideration, so that any one might reasonably be in doubt as to the good faith of the production. Accordingly, to enable the different accounts to be compared, the others are bound to produce as well, or, at any rate, sign the account produced by the one. A similar rule applies to the case of there being several different bankers from whom production is required ; there is no doubt that, if several guardians managed a guardianship together, they must either all disclose or sign the account disclosed by one of them. 2. The person, however, who applies for the order on the banker is required to swear that he does not ask for production with vexa- tious intent ; otherwise he might ask for accounts which he does not require, or which he has got already, in order to give trouble to the banker. 3. An account, Labeo says, is a statement of mutual transactions of payment and receipt of credit and debt’ for the purpose of incurring or discharging obligations, and no account can begin simply with the bare payment of a debt. Moreover, where a party takes a pledge or [security by way of] mandatum, he is not compellable to make discovery of the fact, as these lie outside the account. But a banker is bound to disclose any payment which he engaged for by constitutum ; this is included within the scope of the business of a banker. 4, An action lies in pursuance of this Edict for the amount of

1 After credendi ins. debendi. M.

104 On statement of particulars, [BOOK II

the plaintiff's interest ; 5. from which it is clear that the Edict only applies where the account is one in which the plaintiff is concerned ; and an account may be said to concern me when you keep it at my request. But if my agent made the request in my absence, will it have to be disclosed to me on the ground that it concerns me? The better opinion is that it will. Moreover, I have no doubt that, where a man has an account for me, he must produce it to my agent, as one that concerns him ; and the latter must undertake that I will ratify his act, if I gave him no mandate. 6. If where the books begin there is a date, and in such books Titius’s account is written, and this is followed by my account without day and consul, I can ask to have day and consul given for me too; as the day and consul put at the beginning apply to the whole of the account. 7. Production of an account is dictating it or delivering a written statement or showing an account-book. 8. The preetor says :—“I will order discovery to be made to a banker, or to one who asks for discovery a second time, only on cause shown.” 9. The reason why he objects to discovery being made to a banker is that he himself has the means of being fully informed by his own professional papers, and it would be absurd that the very man whose position is such that he is bound to produce documents should make an applica- tion to have documents produced. As to the question whether discovery of documents cannot be demanded even by the heir of a banker, this is a point to consider; but the answer is that where the books of the business have come to the heir’s hands, he has no right to discovery, but, if not, the order will be made on cause shown. Indeed, on sufficient cause, the account must be discovered to the banker himself; for instance, if he proves that he has lost his accounts by shipwreck, or by the fall of a house, or by a fire, or some similar accident, or that he has them at a great distance, for instance, beyond seas. 10. Again, the preetor will not order production on a further application, except on cause shown:

PauLus (on the Edict 3) for example, where the applicant shows that he has left in foreign parts the account already fur- nished, or that discovery was insufliciently made, or where the accounts are some which he lost by unavoidable misfortune, but not by his own neglect. 1. If he lost them by some mishap which is excusable so far as he is concerned, fresh discovery will be ordered. The above expression “further” (¢terwm) has two

TIT. XI] and discovery of documents 105

significations ; one in which it refers to the second time, which the Greeks express by devtepov, while the other comprehends subse- quent times as well, for which the Greeks use the word wdnup, which is treated as equivalent to ‘whenever it is necessary.’ It may come to pass that a man loses an account which has been furnished to him twice, and in this case the word ¢terum is taken to mean ‘time after time.’

ULPIANUS (on the Edict 4) Where a banker is called upon to discover his accounts, he is liable to be punished if he maliciously contrives to avoid producing them, but he is not answerable for negligence, unless it comes very near malice. A man declines discovery maliciously both where he produces (sic) accounts with a sinister object and where he declines to produce them at all. 1. Where a man offends against this Edict he has to pay by way of damages an amount equivalent to the interest I had in having the account produced at the time when the order was made by the preetor, not the interest I have now; consequently, if my interest has ceased altogether, or has come to be less or greater, the right of action will’ [still exist, and it will] be for neither more nor less than if my interest had been unchanged.

PAULUS (on the Edict 3) There are some persons who are bound to discover accounts, but who nevertheless are not com- pelled to do so by the preetor in virtue of this Edict. For example, where an agent has managed some one’s affairs or accounts, he is not compelled by the praetor to produce an account on pain of an action in factum ; because, in short, the same end can be arrived at by an action on mandatum. Similarly, where a partner has managed the partnership affairs dishonestly, the praetor does not interfere in pursuance of the above words; because there is the action pro socio open. Again, the preetor does not compel a guardian [under this head] to furnish an account to his ward ; but the practice is to compel him to furnish it by the action on tutela. 1. It makes no difference whether the successor or the paterfamilias or the owner of the banker, [if the banker is a slave, | is of the same profession himself or not ; seeing that, as they step into the place of the banker and his legal position, they are bound to discharge his liabilities. But a person to whom the banker may have bequeathed his account-books cannot be held to be included, as the words only point to one who succeeds to his legal position ;

1 After habebit read minus et habebit. Cf. M.

10

106 On statement of particulars, [BOOK 1

a legatee is no more included than he would be if the banker had given him the books in his lifetime. In fact, the heir him- self will not be bound, supposing he does not possess and has not maliciously contrived to avoid possessing; still if, before he delivers them to the legatee, he should be warned not to deliver them [until the application is heard], he will be liable, [if he does deliver them,] as for malicious contrivance; he is also liable so long as he has not delivered them. If the heir has delivered them without malicious intention, then, on cause shown, the legatee can be compelled to produce them. 2. Money-changers too (mwmmu- lari), as we read in Pomponius, may reasonably be compelled to furnish accounts, as money-changers keep accounts just like bankers ; they receive money and they pay money out, so much at a time; and the evidence of their receipts and payments is chiefly to be found in their written entries and account-books, moreover reliance is constantly put upon their good faith. 3. As a fact, the praetor orders discovery to be made to all persons who apply for it of such accounts as they are concerned in, an oath being taken by the applicants that they do not make the appli- cation with vexatious intent. 4. A man is concerned in an account, not only where he is himself party to the contract, or has succeeded to one who was a party, but also where some one subject to his potestas is such a party.

GaIus (on the provincial Edict 1) A banker is ordered to produce accounts ; and it matters not whether the case in which the application is made is one to which the banker is a party or not. 1. The reason why the preetor compels only bankers to produce their accounts, and not other persons engaged in a busi- ness of a different kind, is that their duties and services are discharged in the interest of the public, and their most essential function is that of keeping a careful account of their proceedings. 2. An account is regarded as produced if it is produced from the commencement (a capite); unless an account is examined from the commencement, it cannot be understood ; this of course does not mean that everybody is to be free to inspect and copy the whole of a man’s book of accounts and all his parchments, but only that that particular portion is to be inspected and copied which serves to give the applicant the information required. 3. The measure of damages in the action being an amount equivalent to the interest which the plaintiff has in the account being produced, the result is that, whether the applicant suffers

11

TIT. XT] and discovery of documents 107

adverse judgment in an action brought against him, or he is unsuccessful in an action which he brings, for want, in either case, of the accounts by which he might have supported his case, he will recover in this action whatever is the extent of his loss. Let us consider, however, whether this is really a practical rule: as a matter of fact, if the plaintiff can prove before the judge who hears the case between him and the banker that [if he had been furnished with the account| he would have been successful in the action which he lost, then he must have been in a position to prove his point in that action itself [without the account]; so that, if he did not prove it, or he proved it, but the judge did not attend to the proof, he has only himself to blame, or else the judge. However, this argument is not sound. It may well happen that by this time [, when he sues the banker,]| he has got hold of the accounts, either from the hands of the defendant himself, or in some other way, or he may be able to prove, by means of other documents, or of testimony, which for some reason or other he was not able to bring forward on the former occasion, that he would have been able to succeed in the former action [if he had had the accounts]. It is precisely on this principle that a man has a condictio or an action for damnum injuria if a written assurance is stolen or destroyed ; because, though persons may have been unable to prove some matter or other at first, owing to an assurance being abstracted, and consequently have lost their case, they may be able to prove it now by means of other documents and testimony which they could not make use of on the previous occasion.

MopEsTINUS (Rules 3) It is established law that copies of documents can be properly produced without the signature of the party who produces them.

CALLISTRATUS (on the monitory Edict 1) Women are held to be excluded from the functions of a banker, as that business is one for men.

ULPIANUS (on the Edict 4) This action is not allowed after the lapse of a year, nor against the heir [of the banker], except in virtue of some act of his own. It is allowed to an heir.

108 On Pacts [BOOK II

XIV. On Pacts.

1 ULPIANUS (on the Edict 4) The justice of this part of the Edict is founded on Nature: what indeed can be so much in accordance with mutual trust among men as the principle of abiding by what persons have agreed to? 1. Pactum is derived from pactio—the word pax comes from the same origin—2. and pactio means the consent and agreement of two or more persons to the same effect. 3. The word ‘conventio’ is a comprehensive term applying to all matters about which persons who have dealings with one another agree by way of forming a contract or compromising a dispute ; for just as men are said ‘convenire’ (to come together) when they are brought together and come from different places to one place, so too, when men, starting from different inclinations of the mind, make some common agreement, in other words, have come to arrive at one resolu- tion [, the same word may be used]. So true is it that the term ‘convention’ is of general application that Pedius makes.the nice observation that there is no contract and no obligation, whether concluded by act or by set words, but it involves a convention ; even a stipulation, which is made by a set form of words, is null and void, unless it involves agreement. 4. Most conventions how- -ever come to be classed under some special head, such as that of sale, letting, pledge or stipulation.

2 PAULUS (on the Edict 3) Labeo says a convention’ may be made by act or by letter or by a messenger ; in fact, he says, it can be made with an absent person. Moreover it is understood

‘ that a convention may be by agreement, even when made tacitly; 1. accordingly, if I return to my debtor a written undertaking which he gave me, it is held that there is a convention between us that I shall not sue him, and the law is that, if I do, he will

_ have a good exceptio founded on the convention.

3 MODESTINUS (Rules 3) When, however, an article pledged for debt is restored to the debtor, then, if the money is not paid, there is no doubt that an action can be brought for the debt, unless it is expressly proved that the contrary was intended.

1 For convenire read conveniri.

TIT. XIV | On Pacts | 109

PavuLus (on the Edict 3) Again, as valid conventions may be formed tacitly, it is held that where dwelling-houses (urbane habitationes) are let, the landlord has a hypothek on things “borne in and brought in” (¢xvecta et iulata) even where no express con- vention was made. 1. According to this, even a dumb man can make a ‘pactum.’ 2. One illustration of the above is the case of a stipulation made for giving dos; there is no right of action for the dos before the marriage takes place, any more than if this had been expressly provided, and should the marriage not take place at all, the stipulation becomes inoperative without more (ipso jure). Julianus holds the same. 3. This lawyer was once consulted on the following case which occurred. An agreement had been made that, so long as interest was paid [on money lent], no action should be brought for the principal, but the stipulation had been drawn in absolute terms. Julianus held that the stipulation was subject to a condition, just as if this had been isin provided.

ULPIANUS (on the Edict 4) Of conventions there are three kinds. The occasion of making them is either public or private, and a private convention either is statutable or is founded on the jus gentiwm. A case of a public convention is that of one which is made to conclude peace’, military commanders having come to such and such terms with that object.

PauLus (on the Edict 3) A statutable convention is one which is made binding by some statute. Accordingly, in some cases a right of action is created or taken away by a pact, that is, where this construction is supported by a statute or a decree of the senate.

ULPIANUS (on the Edict 4) Of conventions founded on the gus gentium some give rise to actions and some to exceptions. 1. Those that give rise to actions are not simply referred to under the name ‘convention,’ they have come to be classed under the special designations appropriate to the particular contracts respectively, such as purchase and sale, letting and hiring, partner- ship, loan, deposit and similar names. 2. Even if the matter does not come to be assigned to some special class of contract, still if there is a sufficient additional ground (causa), then, according to Aristo’s well expressed reply to Celsus, there is an obligation formed. For example, I gave you one thing on the understanding that you should give me another, or I gave you a thing on the

1 Read pro pace. Cf. M.

110 On Pacts [BOOK II

understanding that you should do something ; this, says Aristo, amounts to a ‘synal/agma, and a civil obligation will arise upon it. Accordingly I should say that Julianus was rightly taken to task by Mauricianus in reference to the following case :—I gave you Stichus on the understanding that you should manumit Pamphilus, and you manumitted Pamphilus; but Stichus was recovered by some third person in virtue of superior title (evic- tus). Julianus tells us that the preetor must allow you an action in factum [against me], but the other says that your case is met by a civil action for an unliquidated amount (civilis incerti actio), that is to say, an action in set terms (preescriptis verbis), as there is a contract formed, or, as Aristo calls it, ‘synallagma,’ and upon that this action arises. 3. If a promise is made with reference to some illegal act as an inducement to abstain from committing it, on such an agreement no obligation can arise. 4. If there is no additional ground (causa), in that case it is certain that no obligation can be created, [I mean] on the mere agreement; so that a bare agreement (nudum pactum) does not produce an obligation, it only produces an exceptio. 5. To be precise, it does sometimes give its shape even to an action, as in bona fide cases; it is a common saying that agreements by way of pact (pacta conventa) are embodied in bona fide actions. But this must be understood to mean that if the pact follows as part of one continued transaction, it is included in the agreement so as even to give ground to an action; but, if it follows after an interval, it is not included, nor will it be of any force, so far as relied on by the plaintiff, as otherwise we should have an action founded on a pact. Suppose, for example, after a divorce, an agreement is made that the dos shall not be given up [to the woman] at the end of the regular time for which it may be held over, but at once; this agreement will be of no force, or else there would be an action founded on a pact. Marcellus tells us the same thing. Again, suppose an agreement is made with refer- ence to an action on guardianship that interest shall be paid in excess of the established rate, this will produce no effect, else there will be an action founded on a pact; whereas the pacts which are embodied in the agreement are those which make the very terms of the contract, that is, which were made when the contract was originally formed. This was declared to my know- ledge by Papinianus, who added that if, subsequently to a purchase, some agreement is made after an interval which goes beyond the natural character of the contract, no action ex empto [purchaser’s

TIT. XIV | On Pacts 111

action) can be brought thereon, owing to the same rule, viz. that no action is to be founded ona pact. The same must be said in respect of all kinds of bona fide actions. But on the side of the defendant the pact has force, because, according to the ordinary practice, pacts give ground to exceptions, even where they are interposed subsequently. 6. So true is it that pacts’ which are made subsequently, and which are connected with the contract in question, are included in it, that it is recognised law that in purchases, and indeed in bona fide cases in general, so long as nothing further has been done, the purchase may be aban- doned. But if it can be abandoned altogether, why should not a part of it be altered by a pact? This is in fact what Pomponius tells us is the case (on the Edict 6); and, that being so, a pact will produce an effect even on the side of the plaintiff, and will constitute good ground for an action, where nothing further has been done; this on the above principle: why indeed, if the whole contract can be set aside, should it not be recast? The result will be that there is in some sort held to be a fresh contract.

There is something ingenious in this view; consequently I am equally disposed to approve of a view which Pomponius supports in his books of Lectiones, that it is possible by means of a pact for a purchase to be abandoned in part, on the view that the purchase of [the whole is revoked, and then that of] a part is made anew. On the other hand, there was a case where a pur- chaser died leaving two heirs, and the vendor made a pact with one of them that the purchase should be abandoned ; here, Julianus says, the agreement was good, and the purchase was avoided as to a share, seeing that in the case of any other kind of contract one of the heirs might procure an exceptio by making an agreement. Accordingly both views are received law and very properly, | mean the opinion of Julianus and that of. Pomponius too.

7. The preetor says :—“ Pacts agreed on, where they are not made with malicious intent, nor contrary to statutes, plebiscites, decrees of the senate, or imperial edicts, and there is no fraud (fraus) on any of these,—I will uphold.” 8. Of pacts some are. in rem some in personam. They are iv rem wherever I agree generally that I will not sue ; 7 personam where I agree that I will not sue a particular person, e.g. that I will not sue Lucius Titius. The question whether a pact is made in rem or in per-

1 For eaceptiones read pactiones. Of. M.

112 On Pacts [BOOK II

sonam is to be ascertained not more’ from the words of the parties who made the agreement than from their intention ; very often, as Pedius says, the name of a person is inserted in the pact, not in order to make the pact personal, but in order to make it plain who is a party to it. 9. The preetor says he will not uphold a pact made with malicious intent (dolo malo). Dolus malus is committed by cunning and deceitfulness, and, as Pedius says, a pact is made with dolus malus whenever, in order to entrap the other party, a man aims at one thing and pretends that he aims at something else.

10. As for pacts which appear to be made so as to involve Jraus (prejudice), the praetor does not proceed to refer to them ; in fact, Labeo makes the discriminating remark that, if he did so, this would either be unjust or else superfluous. It would be unjust if, by the aid of it, a creditor who had once [by such a pact] given his debtor a bona fide release should after that. endeavour to nullify it; but if the creditor were deceived into giving the release, the inclusion of frauws would be superfluous, because [such] frauws is included under dolus. 11. Whether the pact was made with dolus malus originally, or, after the pact was concluded, something or other was done with dolus malus, there will be a good replication (exceptio) in both cases alike; this is secured by the words in the Edict—“and there is no fraus.” 12. With regard to the clause commonly inserted at the end of a pact,—“Titius asked, Mavius promised,’”—these words are not. understood as only making a pact, but as making a stipulation equally well, consequently an action ex stipulatu arises on them, unless the contrary effect is expressly proved, that is, that the words were used with the intention of making a bare agreement, and not a stipulation. 13. If I make a pact with a man that no action shall be brought on a judgment debt’, or no action for burning a house, such a pact is valid. 14. If I agree that I will not proceed upon a “notification of novel structure” (operis novi nuntiatio), some hold that the agreement is not valid, on the ground that this is a matter in which the preetor’s right of com- mand (imperium) comes in; but Labeo makes this distinction,— if, he says, the “notification of novel structure” is made in respect of private rights, the agreement can lawfully be made; if it is made in connexion with state affairs, it is not lawful; and this is a sound distinction. Accordingly the law is, as to matters of any kind embraced by the preetor’s edict, that where they do not

1 For minus read magis. 2 Del. pro.

TIT. XIV] On Pacts 113

involve any question of injury to the public, but only concern private rights, a pact may be lawfully made; in fact the statute permits a pact to be made by way of compromising an action for theft. 15. Again, a pact not to sue in an action on depositum is, according to Pomponius, a valid agreement, and, similarly, where a man [sc. the depositee] agrees in a case of depositum to under- take the whole risk, this Pomponius says is a valid agreement, and is not to be set aside as being contrary to the rule of law: 16. in short, to put it in general terms, in any case in which the pact lies outside every-day law it ought not to be observed ; + nor can any inhibition be imposed by legacy to a similar effect, and if an engagement not to sue should be made by way of oath, it need not be kept t', so Marcellus says (Dig. 2); and if recourse is had to a stipulation in a case where a pact is unlawful, the stipulation is not legally binding, but must be absolutely rescinded. 17. If a man [nominated heir] should, before entering on the in- heritance, agree with the creditors that they should take less than their debts, the pact will be valid. 18. But if it is a slave who makes the agreement, before acquiring freedom and with it the inheritance, having been appointed heir subject to a condition, then, so Vindius tells us, the pact will be of no avail; but Marcellus holds (Dig. 8) that a swus heres and a slave who is compulsory heir, both being appointed unconditionally, if they make the pact before intermeddling with the goods, make it with effect, and this is sound. He says the same of an extraneous heir; and, if he should enter at the request of the creditors, Marcellus holds that he has in fact an action on mandatum. If however, to take the case mentioned above, a man made the pact while he was a slave, Marcellus holds that it cannot be pleaded, because it is not the practice that a man should, after acquiring liberty, get any advantage from what he did in a state of servitude; which cannot be denied as to the exceptio founded on a pact, but whether the law goes so far as to refuse an exceptio founded on dolus is matter of question. Marcellus in cases of the same kind allowed the eaceptio doli, though at one time he was in doubt about it; for instance, take this case :— a filiusfamilias who was appointed heir made a pact with the creditors [that they should take a percentage], he was then eman- cipated, and he entered on the inheritance: whereupon Marcellus says he could have an eaceptio dolt. He maintains the same view even where a son makes a similar agreement with his father’s 1 The words within + + are hopelessly corrupt, or some part of them.

M. J. 3

10

114 On Pacts [BOOK II

creditors in the lifetime of his father; there too, he says, the exceptio doli will be allowed ; and the real truth is an eaceptio dolt ought not to be held inadmissible even in the case of a slave. 19. At the present day, however, no agreement of this kind bars the creditors, unless they meet together and declare in pursuance of a general agreement what is the percentage of their debts that they are content to accept ; subject to this, that if they cannot agree, then the praetor must interpose, who will make a decree in accordance with the will of the majority.

PAPINIANUS (Responses 10) Majority is held to mean majority in respect of amount of debt, not in number of persons. But if the two sides are equal in respect of the aggregate of debt, then the majority in number is to be preferred. If the number of creditors is equal [too], the preetor will go by the will of that one among them who has precedence in station, but if there is absolute equality between the two sides in every respect, the preetor must choose the terms which are most humane; this being what may be gathered from the rescript of the Divine Marcus.

PAULUS (on the Edict 62) If there are a number of creditors who have one common right of action, they are treated as one person. For instance, suppose there are several co-creditors by stipulation, or several bankers who all gave credit to the debtor at the same time ; the co-creditors in each case count for one, there being only one debt. And if the contract was made with several guardians of a creditor who was under age, they count for one, because they agreed on behalf of one ward. Moreover if one and the same guardian agrees on behalf of several wards who claim in respect of one debt, it is held that he is to be treated as one single creditor, since it is difficult to see how one man can act the part of two. In fact even a man who has several distinct rights of action is not allowed, in competing with a man who has only one, to stand for more than one person. 1. Aggregate amount of debt may be estimated by adding a number of different sums; for instance, one man may have owing to him minute sums amounting altogether to a hundred aure?, where another claims one sum of fifty a@wree ; in which case we must look at the amount which is made up of several sums, because these, when added up together into one sum, exceed the other. 2. We must however reckon interest as making part of the sum.

ULPIANUS (on the Edict 4) According to the terms of the rescript of the Divine Marcus, all the creditors have to attend the

TIT. XIV | On Pacts 115

meeting. How then if some are absent? will those who are absent be bound to go by the example of those present? Again, one nice question raised is whether the agreement will be a bar to pre- ferential creditors who are absent; assuming that the agreement is one which is binding on absent persons as well as present. I remember that, before the above regulation was laid down by the Divine Marcus, the Divine Pius declared by rescript that the Jiscus itself, in cases where it was not secured by hypothec, and preferential creditors in general, would have to be bound by the example of ordinary creditors; as all the above regulations must be held to be in force with respect to unsecured creditors. 1. If to the pact there be added the stipulation of a penalty, it is a question whether the proper course is to plead the pact by way of exceptio, or to sue on the stipulation. Sabinus holds that the person who stipulated can take either course at his pleasure; and this is the better opinion; but if he has recourse to an eaxceptio founded on the pact, it will be fair that he should give a formal release of the stipulation. 2. A thing very commonly said is that an eaxceptio founded on dolus is subsidiary to an exceptio founded on a pact; in short, as Julianus says, and a great many others agree, that in some cases, where an exceptio pacti cannot be had, an exceptio doli will be allowed; for instance, if my procurator makes a pact, I shall have a good exceptio doli, so Trebatius thinks ; his view being that, just as a pact made by my procurator bars an action by me, so too I can plead one to an action against me:

PAULUS (on the Edict 3) seeing indeed that he can give a good receipt to my debtor.

ULPIANUS (on the Edict 4) That it does bar my action is certain, whether I instructed him to be a party to the pact or he was my procurator for all purposes; as indeed Puteolanus tells us (Adsessoria 1), seeing that it is established law that [in the latter case] he can join issue on my behalf.

PAULUS (on the Edict 3) But if the procurator was only made such for the purpose of bringing an action, an agreement made by him does not bar his principal, just as he is not competent to give a receipt. 1. If, on the other hand, he has been made “procurator on his own behalf,” he is treated like a principal, and for that reason his own concluded pact must be upheld.

ULPIANUS (on the Edict 4) Similarly it is ascertained law that the pact of the magzster of a company is good both for and against the company.

a2

15

16

LY.

116 On Pacts [BOOK II

PAULUS (on the Edict 3) Moreover, as Julianus says, the pact of a guardian can be pleaded on behalf of the ward.

ULPIANUS (on the Edict 4) If a pact is made by the purchaser of an inheritance [with a debtor to the same] and the vendor of the inheritance brings an action, he can be barred by an exceptio dol; for, after the rescript of the Divine Pius which laid down that the purchaser must be allowed to bring an wfilis actio, it is only proper that a debtor to the inheritance should have an exceptio doli when sued by the vendor. 1. It may be added that if it was agreed by the owner of a thing sold and a purchaser that the property purchased,—say, a slave,—should be given up, then, if the person who sold as owner sues the purchaser for the price, he can be met by an eaxceptio doli.

PAULUS (on the Edict 3) If I give you ten, and agree with you that you shall owe me twenty, no obligation arises for more than ten; no obligation can be contracted of the class formed re (by act) save to the extent of what actually passed. 1. Some rights of action are taken away by means of a pact in direct law, as a right of action for ¢njuria or theft. 2. In the case of a pledge there is a right of action founded on a pact, in virtue of jus honorarium, and it is nullified by an exceptio, if the party at any time agrees not to sue. 3. If a man makes a pact to the effect that no action shall be brought against himself, but only against his heir, the heir will not have the excepivo. 4. If I make a pact that no action shall be brought against either me or Titius, this cannot be pleaded by Titius, even if he should become my heir, as such a pact cannot be made available by a subsequent event. Julianus gives this rule with reference to a case where a father made a pact to the effect that no action should be brought against him or his daughter, and the daughter became heiress to her father. 5. An agreement by pact made with a vendor, if it is made im rem, can, so a good many authorities hold, be pleaded by the purchaser too; and such, Pomponius says, is the present law; but, in the opinion of Sabinus, even where such a pact is expressly in personam, it can be pleaded against the purchaser as well [as against the vendor]; and Sabinus holds that the rule is the same even where the succession to the property is by donation [instead of sale]. 6. Where the pact is made by a man who has taken possession of an inheritance to which he has no right, then, the opinion held is that, if the real heir should recover the property, the pact cannot be pleaded either by such heir or against him.

20

21

TIT. XIV | On Pacts 117

7. Where a son or a slave makes a pact that no action shall be brought against the father or the owner, [as the case may be, |

Galus (on the provincial Edict 1) then, whether the pact relates to a previous contract made with such person himself or with his father or owner, he [, such son or slave, |

PAULUS (on the Edict 3) acquires a good exceptio. <A similar rule applies to a free man who is held to service as a slave in good faith. 1. Moreover if a fjiléusfamilias makes a pact to the effect that no action shall be brought against him, this will give him an exceptio, and so it will to his father, if he should be sued de peculio,

Gatus (on the provincial Edict 1) or de in rem verso, or if he should be sued as one who takes up the defence in behalf of his son, if this is what he prefers to do.

PAULUS (on the Edict 3) It can also be pleaded by the father’s heir as long as the son lives; but in case of the son’s death it cannot be pleaded either by the father or his heir, because the pact was in personam. 1. If a slave makes a pact that no action shall be brought against him, it will be inoperative [, if pleaded as such]; as for an exceptio doli, let us consider the point. As to this, if the pact he made was in rem, the exceptio founded on a concluded pact will avail both the owner [of the slave in question | and his heir, but if the pact was expressly 7x personam, then the owner still has an exceptio doli. 2. Again, a man cannot, by making a pact, enable someone else to plead it who is subject to his potestas, but he can plead it himself, according to Proculus, if he should be sued in the name of the person so subject, and this is perfectly sound, provided always that it was so understood when the pact was made. But, if | make a pact that you shall not sue Titius, and then you bring an action against me in his name, I cannot have an exceptio of pact concluded; what is not open to Titius himself will equally little avail for one who defends his case. Julianus himself says,—if a father makes a pact that no action shall be brought against himself’or his son, the better opinion is that the filiusfamilias is not allowed to plead the pact by way of exceptio, he can only plead dolus. 3. A woman under potestas can make a pact that she will not sue for her dos when she comes to be sui juris; 4. and a man under potestas can make a good pact with reference to a legacy which has been left him on a condition. 5. Where a number of persons have a concurrent right to ask for the same entire sum of money as co-creditors, or are co-debtors of

22

23

24

25

26

27

118 On Pacts [BOOK II

the same sum, the question has been raised as to how far an exceptio pacti [founded on an agreement made by one of them] is available against or for the others also. As to this, a pact made im rem is available in defence of any co-debtor of whom you can say that the party who made the pact had an interest in such co-debtor being free from liability. Consequently an agreement made by the principal debtor that he shall not be sued will be a defence to his sureties,

ULPIANUS (on the Edict 4) unless the understanding was merely that the principal should not be sued, but the surety might be ; as in that case the surety will not have the exceptio.

PAULUS (on the Edict 3) But an agreement made with the surety will be no defence to the principal debtor, because the surety has no interest in the principal debtor not being sued for the money. Indeed it will not be a defence even to his co-sureties. 1. The defendant to an action cannot as a matter of course plead an agreement made [by the plaintiff] with another’, irrespective of the kind of interest he has in doing so; he can only do so where, the exceptio being allowed him, the real benefit goes through him to the party with whom the agreement was made; as in the case of a principal promisor and those who are bound as sureties on his behalf.

THE SAME (on Plautius 3) But if the surety guaranteed the debt on his own behalf, in that case the surety must be treated as the principal debtor, and an agreement made with him is held to be made with a principal.

THE SAME (on the Edict 3) The same rule applies to two co-promisors, or two bankers, if [, in the respective cases,| they are partners. 1. A personal pact, according to Labeo, does not affect a third person, as indeed it does not even the heir of a party. 2. But although a pact made with the surety cannot be pleaded by the principal debtor, still, in most cases, so Julianus tells us, the principal debtor will have an eaceptio dol;

ULPIANUS (on the Edict 4) that is to say, where the intention was that even the principal debtor himself should not be sued. The same principle applies to co-sureties.

PAULUS (on the Edict 3) If [two] bankers are partners and one of them makes a pact with a debtor, will the other be barred by an eaceptio? Neratius, Atilicinus, and Proculus say that the other will not be barred, even if the first made his pact in rem;

1 Read alto.

TIT. XIV | On Pacts 119

the only established rule being, so he says, that the other can sue for the whole debt. Labeo says the same; in fact one partner cannot, he says, even novate the obligation, though valid payment can be made to him; and in the same way, where persons under potestas lend anything, valid repayment can be made to them, though they cannot novate the obligation. This is quite true, and the corresponding rule applies to two co-creditors by stipulation.

1. Ifan agreement is made with a debtor not to sue for a given time, this will not protect either the debtor or his surety for any further time. But if the principal debtor, without naming himself, enters into a pact that the creditor shall not sue his surety, some hold that this will not protect the surety, though the principal debtor has an interest in its doing so; for the reason that no exceptio ought to be open to a surety which is not open to the principal debtor too. The view I have always maintained is that this exceptio does protect the surety ; it would not be a case of the surety acquiring a right through a free person, but rather of provision being made for the person himself who makes the pact; and this seem to be in accordance with the present practice’. 2. A man made a pact that he would not sue, and afterwards agreed that he might sue; here the first pact will be nullified by the second; not indeed in direct law, in the way a stipulation ,is annulled by a subsequent stipulation, where such is the intention, because the operation of a stipulation is a matter of law, in the case of an informal agreement all turns upon fact; accordingly, in the case referred to, the exceptio is rebutted by a replicatio. In accordance with this principle it may happen that the first pactwm will not protect the sureties. But where the pact agreed upon was of such a kind that it took away the right of action itself, take, for instance, the case of an action for énjuric, the party cannot enable?’ himself to bring an action by making a subsequent pact to the effect that he may bring it, because, in this case, the original right of action was taken away, and the subsequent pact is ineffectual, as a means of conferring a right of action; an action for injurie cannot be founded on a pact, but only on the commission of offensive conduct. The same thing may be said as to bona jfide contracts, where a pact agreed upon nullifies the whole contract, as in the case of a purchase; the operation of a fresh pact is ‘not to revive the old obligation, it will only serve to form a new contract. Where however an agreement was made subsequently,

1 For videmur etc. read videmurque eo jure uti. M. 2 Read facere for agere. Cf. M.

120 On Pacts [BOOK II

not in order to take away the whole contract, but only to reduce its terms, there a second pact may operate so as to reestablish the original contract. This may very well occur in the case of an action for dos. Suppose a woman were to make a pact to the effect that her dos should be handed over to her at once, and, after that, were to make a second pact that it should only be given at the time laid down for it by statute; in that case the dos will thereupon revert to its regular legal condition. We have no right to say in such a case that the position with respect to dos is made worse by means of a pact; as wherever the right of action for dos reverts to those legal implications which were made part of its nature by statute, [ov, which nature’s own law gave it,] the woman’s legal position in respect of dos is not made worse, it resumes its regular character. My master Sceevola is of the same opinion on this point. 3. One thing there is which cannot be provided by any pact, namely that a man shall not be answerable for dolus; though indeed if a man agrees by pact that he will not bring an action on depositum, the direct consequence seems to be that he agrees not to bring an action for dolus; no doubt such a pact as this can be pleaded. 4. Pacts which create a position contrary to sound morals ought not to be observed ; as, for instance, where I agree not to sue you for theft or injuria, if you should commit such offences; because it is desirable that people should go in fear of the penalties attached to theft and injuria; but such a pact may very well be made after the offence is committed. Similarly a man cannot make a pact that he will not sue out an Interdict wnde vi, | assuming that it touches some matter of state concern. To sum / up the matter, where the agreement made by pact is outside the \ scope of private rights and obligations, it cannot be upheld; as care must above all things be taken that an agreement made as to one matter or with one person shall not produce an ill-effect in another matter or in the case of another person. +5. If you owe me ten, and | agree with you that I will forbear to sue you for twenty, the law is that you have a good eaxceptio of pactum conventum or of dolus as to ten. Again, if you owe me twenty, and I agree not to sue you for ten, the result of your meeting my demand with an exceptio will be that I am only at liberty to require you to pay the odd ten. 6. But if I stipulated for ten or Stichus, and make a pact with you as to ten, after which I sue you for Stichus or ten, you can plead ‘pactum conventum, which will bar my whole suit; for just as payment or an action or 1 5, 6 and 7 are absurd, and much of the Latin is barbarous.

TIT. XIV | On Pacts 121

a formal release applying to one thing would discharge the whole obligation, so too, if there is an agreement interposed by pact not to sue for one thing, the whole obligation is got rid of. But if our agreement was understood to be that I should not have ten given me, but Stichus, then I have a good right of action for Stichus, and there is no exceptio that can bar me. A similar rule holds as to an agreement not to sue for Stichus. 7. But if you are bound to give me, generally, a slave, and I thereupon agree that I will not sue for Stichus, then, if I sue for Stichus, I may be met with an exceptio of pact, but if I sue for some other slave, there is no objection to the action. 8. Again, if I agree not to bring a hereditatis petitio against you, and then I sue for specific things as heir, you can have an exceptio of pactum conventum drawn to suit your case, founded on the intention! of the agreement in question, just as if I were to agree not to sue for a piece of land, and I were to sue for the usufruct in it, or not to sue for a ship or a building, and I sued for particular distinct portions of them, after the whole had been broken up; provided always there were no express understanding to a different effect. 9. Where a formal release given is void, it is held to amount to a tacit agreement to the effect that no action shall be brought. 10. A slave who is part of an inheritance cannot make a valid pact on the express behalf of the person who eventually enters as heir, as that person is not yet owner of the slave ; but if the pact concluded is made i rem, the heir can acquire the benefit of it.

GAIUS (on the provincial Edict 1) Pacts which are con- cluded in contravention of the rules of the civil law are not held valid ; as, for instance, where a ward agrees without his guardian’s concurrence that he will not sue his debtor, or that he will not sue for a given time, say five years: in fact, he can not even give a valid receipt for money due, except with the concurrence of his guardian. On the other hand if a ward agrees that something which he owes should not be sued for, the pact so concluded is upheld, because it is open to him to improve his position even without the concurrence of his guardian. 1. If the cwrator of a lunatic or prodigal makes a pact that no action shall be brought against such lunatic or prodigal, it is more than equitable that such an agreement of the curator should be supported; but the converse does not hold. 2. If a son under potestas, or a slave, makes a pact that he will not himself bring an action, the pact is

1 For pactum read actum, Of. M.

29

30

122 On Pacts [BOOK It

inoperative. But if either of the last-named makes a pact 7m rem, that is, that the money in question shall not be sued for, this pact will be held good in bar of an action by the father or the owner, provided the son or the slave had free management of his peculiwm, and the matter about which he made the pact concerns the peculium. Even then there is some further qualification; for, seeing that it is quite true, as Julianus holds, that however much a slave may have the management of his peculiwm allowed him, still he has no right to give it away,—the consequence is that if he deliberately makes a gratuitous pact that the money shall not be sued for, the pact so concluded ought not to be upheld; should he however as a consideration for such an agreement receive something which is worth as much as what he gives, or possibly more, then the pact must be upheld.

ULPIANUS (on the Edict 4) Again, if aslave lends his owner's money, then, according to Celsus, any pact which he made at the time of the loan is valid.

GAIUS (on the provincial Edict 1) Still, as to a filiusfam- lias, we may well ask whether it is not sometimes the case that, even where he agrees that he will himself forbear to sue, the agreement is valid ; as, in some cases, a jiliusfamilias has a right of action ; for instance, he has one for enjuricw. However, as the fact is that where an ¢ngwria is committed on a son, the father himself has a right of action, there is no reasonable doubt that, if the father wishes to sue, he will not be barred by the son’s agreement. 1. Where a man stipulated with a slave for the pay- ment of a sum of money which Titius owed him, the question has been asked whether, supposing he then sues Titius for the money, his action can be and ought to be barred by an eaxceptio of pactum conventum, on the ground that he must be held to have made a pact that he would not sue Titius. Julianus thinks there would be no bar to the stipulator’s action, except where he has a good right of action de peculio against the owner of the slave, in other words, where the slave had suflicient ground for intervening, for example, because he (the slave) owed Titius the same sum: but if the slave only intervened as surety, in which case no action de peculio would be allowed, then the creditor ought not to be prevented from suing Titius ; and it is equally true, in the opinion of Julianus, that he ought by no means to be prevented if he took the slave for a free person. 2. If I stipulate with you, subject to some condition, to the effect that you will pay me a sum which Titius owes me uncon-

31

32

33

TIT. XIV | On Pacts 123

ditionally, is it the case, supposing the condition fails, that, if I sue Titius, | may and ought to be met by an exceptio of pactum con- ventum? The better opinion is that no such exceptio can be used.

ULPIANUS (on the Edict of the Curule Adiles 1) It is per- fectly admissible to make an agreement not to take advantage of the Edict of the Aidiles, whether the agreement should be made in the course of contracting the sale or subsequently.

Pauuus (on Plautius 3) With regard to the rule above mentioned, that, if a pact not to sue is made with the principal debtor, this gives a good exceptio to the surety as well; this rule was adopted for the debtor’s own sake, to prevent his being sued by the surety on the mandatum, consequently, if no action on mandatum was open, if, for example, the surety guaranteed the debt by way of bounty, the proper view to take is that the surety will not have the exceptio.

CELSuUS (Digest 1) A man promised a dos on behalf of a@ woman who was his granddaughter through his son, and made a pact that no action should be brought to recover the dos against either himself or his son. If after that the action is brought against one who is heir to him along with his son, such coheir cannot protect himself by an eaceptio founded on the agreement, but the son can very well avail himself of it ; since the law allows a man to take thought for his heir, and there is nothing to prevent his providing for one of his [expectant] heirs in particular, on the chance of his becoming heir, and taking no thought for the others.

MopESTINUS (Rules 5) It is the opinion of Julianus that the legal tie of agnation cannot be renounced by a pact, any more than a man can be allowed to say that he does not wish to be a swus heres.

THE SAME (Responsa 2) Two brothers and a sister, Titius, Meevius and Seia, divided amongst them an inheritance which they shared in common, and executed instruments by which they declared that they had made a partition of their maternal inheritance, moreover they gave mutual assurances that nothing remained undivided. Afterwards, two of them, that is Meevius and Seia, who had been absent at the time of their mother’s death, ascertained that a sum of money in gold coins had been abstracted by their brother, of which sum no mention was made in the instrument of partition. I wish to know whether, the

36

37

38

39

40

124 On Pacts [BOOK II

agreement to divide being made, the brother and sister have a good right of action against their brother for division of the money abstracted. Modestinus’s answer was:—if, on suing for a portion of the money which is alleged to have been abstracted by Titius, the two plaintiffs should be met with an exceptio founded on a pact in general terms, the fact being that they made a composition including the matter as to which Titius committed the fraud, without being aware of the truth, there would be a good replication of dolus.

PROCULUS (Epistles 5) You being in possession of my estate, you and I agreed that you should deliver possession thereof to Attius ; in this case, if [ sue you to recover the property, my action cannot be barred by an eaceptio founded on the agree- ment, unless either you have already delivered possession, or else you and I made the agreement for your benefit and it is not your fault that you have not made the delivery.

PAPIRIUS JUSTUS (on imperial enactments 2) The Emperors Antoninus and Verus laid down by rescript that a debtor to a municipality could not be excused payment by the curator, and that the release made to certain inhabitants of Philippi must be rescinded.

PAPINIANUS (Questions 2) The law of the State cannot be varied by the agreements of private persons,

THE SAME (Questions 5) The old lawyers hold that an agreement obscurely expressed or of doubtful meaning must be interpreted against a vendor or locator, such persons having it in their power to set down the terms of the contract more clearly.

THE SAME (Responsa 1) A pact in these words,—“ I declare that you are not bound” need not be intended to be in personam, and, being general, it will apply perfectly well between the respec- tive heirs of the original parties, in case of legal proceedings. 1. A man who has lodged an appeal agrees that if a sum of money which he has promised to pay by way of compounding an action is not paid by a given day, he will comply with the original judgment; the judge of appeal will hereupon, without discussing any other point on the main question, proceed upon the above as a lawful agreement, just as if the defendant had confessed his liability. 2. The coheirs of a deceased person having divided the assets and liabilities, the different creditors accepted interest from the respective coheirs on the footing of the arrange-

43

44

TIT. XIV | On Pacts 125

ment, for the whole of their debts, though no formal readjustment of liability had been made :—this will not interfere with the rights of action which every creditor had previously against all the heirs in proportion to the respective shares of the latter in the inherit- ance, so long as such heirs do not proceed to offer to the creditors assigned to them respectively the whole of their debts in due execution of the arrangement made. 3. A father who had promised a dos made a pact to the effect that, after his own death, if his daughter should die without children, the marriage having lasted up to that time, a certain portion of the dos should revert to his brother and heir. If the father (socer) should have other children subsequently, and appoint them heirs by his testament, the above agreement will give them a good eaceptio doli, as the intention of the contracting parties was to provide for the heirs, and it is clear that whereas the father, in expressing [what he considered | his last wishes, referred to his brother, he only did so at a time when he had no other children [than his daughter].

THE SAME (Responsa 11) “If before such a day you pay me such a portion of your debt, I will give you a formal release for the rest, and discharge you from your liability.” The above gives no ground of action; still it is well established that the debtor has a good exceptio pactt.

THE SAME (Responsa 17) An agreement was made between debtor and creditor that the creditor should not take on himself the burden of paying the tax (tributwm) due on land which he held as security for the debt, but that that duty should fall on the debtor. I gave the opinion that this agreement was not binding so far as the jfiscus was concerned, as it was not allow- able that a regulation of revenue law should be stultified by agreements between private persons.

PAULUS (Questions 5) We know, in the case of a sale, what the law requires of the vendor on the one hand and the purchaser on the other; but if the parties chose to vary the terms in any respect when they made the contract, this must be maintained.

Sc@voua (Responsa 5) A boy under age being on the point of being made to decline his father’s inheritance, his guardian settled with a majority of the creditors that they should accept a percentage on their debts, and the curators made the same arrangement with others. The question is this: if the guardian is himself a creditor of the father, is he only allowed to retain for his own debt an equally small portion? My answer was that

45

46

47

126 On Pacts [BOOK 1

if the guardian brought the other creditors down to a percentage on their debts, he was bound to put up with a similar reduction himself.

HERMOGENIANUS (Epitomes of law 2) An agreement for partition, unless it takes formal effect by a delivery or a stipula- tion, will, being a bare pact, afford neither party ground for an action.

TRYPHONINUS (Disputations 2) An agreement made between heir and legatee to the effect that the former need not give security is recognised to be valid, as there is an enactment of the Divine Marcus enrolled in the Semestria to the effect that the will of the deceased shall be binding on this point as well as any other. Moreover, where the heir has been released by the legatee by means of an agreement to that effect from the duty of giving security, the latter cannot be allowed to change his mind and revoke the release, as it is quite open to a man to alter for the worse his means of enforcing his rights at law or his expectation of realising his claims at some future time.

SCAVOLA (Digest 1) A purchaser of land gave an under- taking that he would pay twenty, and promised the same by stipulation; after this the vendor gave an undertaking to the effect that he had agreed that he would be content with thirteen, and that he should receive payment of that sum within a specified time. The debtor, on being sued for the latter amount, agreed that, if it were not paid within a further specified time, he should be liable to be sued on his original undertaking. The question was asked whether, on failure on the part of the debtor to fulfil the later! agreement, the whole debt could be demanded in pursuance of the original undertaking. I answered that, taking the facts as stated, it could. 1. Lucius Titius, having a complicated account with Gaius Seius, a moneychanger (mensularius), comprising a number of receipts and payments, made Seius his debtor, and the latter handed him a written document in the following terms :— “Whereas you have had a moneychanger’s account (ratio mense) with me, I have in my hands at this time, as the balance resulting from a great number of transactions included in the said account, three hundred and eighty-six [awret], and the proper interest thereon. As for the sum of awret which I hold to your credit without express agreement, I engage to repay it. If any instru- ment issued, that is, written, by you is remaining in my hands for

1 For posteriore read posteriori. Cf. M.

50

51

TIT. XIV | On Pacts 127

whatever reason, whatever the amount may be, it is to be held void and treated as cancelled.’ The following question arose. Some time before this instrument was made Lucius Titius had requested Seius the moneychanger to pay the former’s patron the sum of three hundred; must we say that, considering the terms of the above letter, by which all written engagements connected with whatever contract were to be held void and treated as cancelled, neither Seius nor his sons can be sued in respect of the last-mentioned matter? I answered that if the account mentioned only included the receipts and payments made, all other debts remained as they were.

GAIUS (on the Twelve Tables 3) It is perfectly clear that any pact that is made on a delivery of property is valid.

ULPIaNus (on Sabinus 36) If a man lends money and makes a pact that he will only sue the debtor for payment to the extent of what the latter is able to pay, is this a valid agreement? The better opinion is that it is; there is nothing dishonest in a man desiring to be sued for payment to such extent only as his means allow.

THE SAME (on Sabinus 42) On a contract of deposit, or a loan for use, or a locatio, or any other similar contract, I should say that there is nothing inadmissible in an agreement such as the following: “You must not make my slave a thief or a runaway ”; in other words, “You must not incite him to become a thief or a runaway, you must not be so negligent in providing for him as to cause him to take to stealing.” Just as there may be an action brought for corrupting a slave, so too, on the same principle, there may be such an agreement as the above, which aims at preventing the corruption of slaves.

THE SAME (on the Edict 26) If you believe [erroneously | that you are bound in pursuance of a legacy to agree with a debtor that you will not sue him, and accordingly he enters into such a pact, the debtor will not be released in strict law, nor can he bar your action by pleading the agreement by way of exceptio, so Celsus informs us (lib. xx). 1. The same writer adds the following:—If you believe erroneously that you have to pay a legacy to Titius, and you instruct your debtor to pay it, and the debtor who is already a creditor of Titius, agrees with him that he will not sue him, this will not put an end to your right of action against your debtor, nor to his against his debtor.

52

53

54

55

128 On Pacts [BOOK

THE SAME (Opinions 1) A letter by which a man pledged himself that such a one was coheir jointly with himself will not give the latter any right of hereditatis petitio against persons who are in possession of assets of the deceased. 1. Land being pledged as security for debt, an agreement is made between the debtor and a person who purchased from the pledgee, professing to do so on the debtor’s behalf, that the profits already received should be set off against what was owing, and the balance should be paid, and thereupon the land should be restored to the debtor ;—in this case, [on the death of the purchaser, | his heir is bound to observe the agreement entered into by the deceased. 2. If an agreement is made that any sums already paid by a pledgee of land in discharge of the land tax (¢ributwm) due from the estate subject to the pledge should be recoverable from the pledgor (debitor), and future sums payable out of the same land should be paid by such pledgor, this is a lawful agreement and must be upheld accordingly. 3. Certain persons threatening to bring the plaint for an inofficious testament made by their father, the heir agreed that they should receive a specified amount as long as he lived. A claim was made to have this pact treated as making a perpetual obligation, but it was laid down by rescript that by no law or principle of justice could such a demand be entertained.

THE SAME (Opinions 4) There is no harm in advancing to a person engaged in litigation the expense of his action; but an agreement to the effect that instead of the amount expended for the purpose of the action being returned with lawful interest, the half of whatever is gained by the suit shall be handed over is an unlawful bargain.

Scavoia (notes to Julian Digest 22) If I had a right to ask for Stichus and I agree not to sue for him, it cannot be said that my debtor is in default; and, if Stichus dies, I do not think the defendant is liable, if he was not in default before the pact was made.

JULIANUS (Digest 35) If a debtor has a usufruct in a slave, and the slave who is the subject thereof enters into a pact to the effect that the debtor shall not be sued, by this pact he improves the debtor’s position. Again, if the creditor had the usufruct in a slave, and made a pact that he would not sue, but the slave in whom he had the usufruct thereupon agreed that the creditor

56

7

58

TIT. XIV | On Pacts 129

might sue, the creditor might perfectly well claim to be allowed to sue in virtue of the pact interposed by the slave.

THE SAME (on Minicius 6) If it is agreed that a landlord shall forbear to bring some action against a tenant, and the agree- ment is made on sufficient grounds, there is nothing in this to prevent the tenant from bringing an action against the landlord.

FLORENTINUS (Institutions 8) A man who accepts interest | from his debtor in advance is held to make a tacit pact that he © will not sue for the principal before the time by which the interest would have been payable. 1. If a pact is expressed in such terms that it is iz rem with respect to one party and is im personam with respect to the other, as, for example, where the terms are that I will not sue or [and?] that you shall not be sued, then my heir will have a good right of action against all of you, (ie. you and your heirs,) and all of us, (i.e. I and my heirs,) will have a good right of action against your heir.

NERATIUS (Parchments 3) In cases of purchase and sale, letting and hiring, and any similar contracts, it is undisputed that, so long as nothing further. is done, the parties who are bound to one another can by mutual agreement withdraw from the contract. Aristo’s opinion went further: if, he said, I have done for you all that I was bound to do as vendor, and thereupon, the purchase- money being still owing, you and I agree that you shall restore to me everything connected with the thing sold which you received from me, and that you shall not pay the purchase-money, and you accordingly restore everything, you will thereupon cease to owe me the money, because, according to the received view as to bona fides, which affords the guiding principle in all such cases, the agreement in question is a bona fide convention. It would make no difference whether, before anything were done in pur- suance of our respective obligations, we agreed to abandon the contract or you first restored to its original position everything that I had given you, and then we agreed that you should not give me anything in pursuance of the contract. One thing there is which certainly cannot be effected by any agreement concluded with the object of making void a previous arrangement; you cannot be compelled in that way to give me back what I have once given you; were this the case, our operations would consist not so much in getting rid of our old contract as in creating between us fresh obligations of some kind.

M. J. 9

59

60

61

62

130 On Pacts [BOOK II

PauLus (Rules 3) Wherever a man can acquire any right through a stipulation made by another, the law is that his position can be improved by pacts agreed on by the agency of the same person.

Papirius Justus (Imperial enactments 8) The Emperor Antoninus laid down in a rescript to Avidius Cassius that, if the creditors of a deceased person are willing to take a percentage on their debts out of the estate, though it were from an heir who is a stranger, those akin to the deceased should be first considered, if substantial persons.

PomMPoNtus (on Sabinus 9) No man can by means of a pact deprive himself of the right to consecrate (dedicare) his own ground, or to bury a dead body on his own land, or to dispose of his estate without his neighbour's consent.

Furius ANTHIANUS (on the Edict 1) A debtor, after first agreeing that he shall not be sued for the debt, the result of which pact is that his surety is protected as well, makes another agree- ment that he may be sued: the question has been raised whether the surety thereupon loses the benefit of the former agreement. The better opinion is that when the surety has once acquired a right to an exceptio founded on a pact, it cannot after that be wrested from him against his will.

Da ON COMPROMISING AND COMPOUNDING.

ULPranus (on the Edict 50) When a man compromises a case (transigit), the subject of compromise is some question at issue which he treats as doubtful, and the result of the trial as uncertain, the case not being concluded. But one who comes to terms (paciscitur) gives up gratuitously and by way of bounty something distinct and undisputed.

THE SAME (on the Edict 74) For a man to agree to a com- promise there need not be any Aquilian stipulation added, it is enough that terms are agreed upon by way of pact.

ScavoLa (Digest 1) The Emperors Antoninus and Verus issued the following rescript: “It is beyond question that private agreements cannot impair the rights of those who are not parties

Tir. xv| On Compromising and Compounding 131

to them. Consequently whatever compromise has been made -/ between the heir and the mother of the deceased, the testament cannot be held to be rescinded by it, and legatees and manumitted slaves have not lost their rights of action; so that whatever they wish to sue for in pursuance of the testament, they must bring their action against the person who is named therein; who, when he compromised the question of inheritance, either took measures for his own protection in respect of the burdens which fall on the heir, or, if he did not, has no right to allow his own neglect to prejudice other persons.” 1. A compromise being made [between the above parties] in respect of a fide commissum [made in favour of the mother], and afterwards the “codicils” themselves being found: I desire to ask, supposing the mother of the deceased has received less in pursuance of the compromise than was properly due to her, whether she has a right to get the difference in virtue of the jfidet commissum. The answer was Yes. 2 A secured creditor having sold the property pledged [and died], the debtor agreed with one Mezevius,—who gave himself out as the statutable heir of the creditor,—to terms of composition very advantageous to the latter ; after which, the creditor’s testament being produced, it turned out that his real heir was Septicius. Hereupon these questions were asked: if the debtor sues Septicius in an action on the pignus, can the latter have an exceptio founded on the composition which the plaintiff [debtor] made with Meevius, who was not really heir under the testament?! and will Septicius have a condictio to recover from Meevius the money which the debtor paid Meevius under the impression that he was heir, on the ground that Meevius received it on the pretence of being heir? The opinion given was that on the above statement of fact the answer was No [to both questions]; as Septicius was not himself a party to the compromise with the debtor, and when Meevius received the money he was not acting on behalf of Septicius.

ULPIANUS (on Sabinus 46) The Aquilian stipulation abso- lutely supersedes and annuls all preceding obligations, and it is itself annulled by the acceptilatio; this is the present practice. Consequently even bequests which are made on a condition come within the scope of the Aquil

Related documents

• Assessment of Nutritional Knowledge in Patients With Inflammatory Bowel Disease#863887
• The Effect of Consuming on Body Composition and Blood Biochemistry Index#873416
• Effect of Elemental Diet on Adult Patients With Eosinophilic Gastroenteritis#1103356
• Desechos plásticos en el tracto digestivo de Coryphaena hippurus, Sarda orientalis y Katsuwonus pelamis comercializados en el Puerto Pesquero de Santa Rosa, Santa Elena, Ecuador#936507
• Digestion, as a Theme in Phenomenology#80669